AGAIN:
1. Is it legally AND logically relevant?
2. Does it shock the conscious or is it inefficient?
3. Does it fall under a policy exclusion?
a. Settlement negotiation (WHOLE statement)
b. Medical bills (ONLY the payment)
c. Subsequent remedial measures (NOT 3rd party)
d. Plea
4. Are you trying to get in something that someone has done before?? THIS IS BAD UNLESS
a. Morally neutral and relevant habit
b. Prior bad act (used for state of mind)
c. Sexual propensity of D
d. Character evidence of reputation or opinion
5. Are you impeaching the witness?
a. Sensory defects (extrinsic)
b. Bias (extrinsic)
c. Contradiction (extrinsic if relevant to heart)
d. Prior conviction
e. Prior dishonest/deceit
6. Are you trying to get an out of court statement in?
a. Is the declarant testifying?
i. Prior inconsistent
ii. Prior consistent (bias or rehabilitate)
iii. Prior ID
iv. Opposing party’s statement
b. Is the declarant NOT testifying?
i. Dying declaration
ii. Statement against interest
iii. Former testimony when there was opportunity to cross
c. OR were the conditions enough to make it reliable?
i. Excited utterance
ii. Present state impression
iii. Medical diagnosis
iv. Mental/physical/emotional state
d. OR are you trying to get it in for another purpose?
i. Fact of utterance (that they said something)
ii. Impeachment
iii. Verbal acts
iv. Effect on hearer
v. State of mind
ATTACK:
1. Relevant??
2. Does it shock the conscious or waste?
3. Policy exclusion?
a. Settlement
b. Medical
c. Subsequent remedial
d. Plea
4. Is it something they’ve done before trying to prove they’re that kind of person?
a. Bad unless:
i. Habit
ii. Prior bad act used for state of mind or ID
iii. Sexual propensity
iv. Character evidence of opinion or reputation
5. Are you trying to impeach the witness?
a. Sensory defect
b. Bias
c. Contradiction
d. Prior conviction
e. Prior dishonesty/deceit
6. Is it an out of court statement?
a. Trying to prove TOMA?
i. Declarant available:
1. Prior inconsistent
2. Prior consistent (no bias or rebut)
3. ID
4. Opposing party statement
ii. Declarant unavailable:
1. Dying declaration
2. Statement against interest
3. Former testimony when there was opportunity to cross
iii. Doesn’t matter:
1. Excited utterance
2. Present sense impression
3. Medical diagnosis
4. Mental/emotional/physical state
b. NOT trying to prove TOMA?
i. Fact of the utterance
ii. Impeachment
iii. Verbal acts
iv. Effect on hearer
v. State of mind
SO
1. RELEVANCE
a. Some tendency to prove?
2. PROBATIVE VS. PREJUDICE
3.
4.
5.
6.
a. Does it shock the conscious or is it inefficient?
POLICY EXCLUSION – CAN get in with impeachment (contradiction?)
a. Subsequent remedial?
b. Offer to pay medical?
c. Settlement negotiations? (whole statement)
d. Plea negotiations?
PROPENSITY
a. Can’t prove that they did this because that’s just the type of person they are
b. BUT CAN:
i. A relevant habit
ii. A prior bad act (NOT a propensity, just to ID them or prove some state of
mind)
iii. Sexual propensity
iv. Character evidence of OPINION or REPUTATION
WITNESSES
a. IMPEACHMENT:
i. Sensory defects (extrinsic)
ii. Bias (extrinsic)
iii. Contradiction (extrinsic IF it’s relevant to heart of case)
iv. Prior acts of dishonesty/deceit (NO extrinsic)
v. Prior convictions (NO extrinsic except certified copy)
HEARSAY
a. Who is the declarant (are they available??)
i. If YES:
1. Prior inconsistent (sworn)
2. Prior consistent (to rebut OR prove no bias)
3. Opposing party’s statement (them or someone in capacity,
believed true)
ii. If NO:
1. Dying declaration
2. Former testimony (w/ opportunity to cross)
3. Statement against interest (penal, pecuniary, propriety)
b. When was the statement made (in or out of court??)
i. OCS = hearsay UNLESS exception/exemption
c. What is it being offered to prove (TOMA or something else?)
i. Fact of utterance? (just fact that something was said)
ii. Impeachment (always allowed)
iii. Verbal acts
iv. Effect on hearer (showing the impact, why the hearer did something,
show they knew about something)
v. State of mind (speaker’s state, show they’re crazy or they’re biased)
d. Circumstances surrounding statement?? (to see whether it falls into exception)
i. Present sense impression
ii. Excited utterance (more than what you think)
iii. Then-existing mental/emotional/physical condition
iv. Statement made for medical diagnosis or treatment
GENERAL ANALYSIS:
1. Is it relevant? – no = OBJECTION
a. Does it have a tendency to prove?
2. If yes, is it unfairly prejudicial (shock the conscious)? – yes = OBJECTION
3. If no, does it fall under a policy exclusion? – yes = OBJECTION (usually)
a. No subsequent remedial measures
i. UNLESS:
1. Impeachment?
2. Is ownership, control, or feasibility disputed?
b. No settlement negotiations (whole statement)
c. No medical expenses (only offer to pay)
d. No plea negotiations
4. If no, are you trying to get in something that someone has done before to prove that
they’re they type of person who would do this? – yes = OBJECTION
a. If yes, MUST BE:
i. Morally neutral relevant habit
ii. Prior bad act relating to motive or ID
iii. Sexual propensity of D, D + P, or to prove that it was someone else
iv. Character evidence of opinion or reputation
5. Is the witness giving expert testimony? – the judge needs to say they’re an expert
6.
WITNESS ANALYSIS:
1. Are they an expert?
a. If NO, they can NOT give expert-type opinion
2. Are they a character witness?
a. ONLY in criminal trial!!
b. ONLY if D opened the door!
c. If YES, they can only give opinion or reputation that relates to pertinent trait
d. NO leading questions on direct
3. Can you impeach them?
a. Sensory defects? (extrinsic allowed)
b. Bias (extrinsic allowed)
c. Contradiction (NO extrinsic)
d. Prior acts of deceit (NO extrinsic)
e. Prior convictions (NO extrinsic BUT certified copy)
HEARSAY ANALYSIS:
1. Are they making an out of court statement?
2. Are you trying to prove the truth of the matter asserted?
a. If yes, is the declarant testifying at the current trial?
i. They can say:
1. Prior inconsistent statement
2. Prior consistent statement
3. Out of court identification
ii. Otherwise HEARSAY! (EVEN if it’s their own words)
b. If yes and the declarant is unavailable
i. It has to be reliable
1. Former testimony with opportunity to cross
2. Dying declaration
3. Statement against interest
4. Present sense impression
5. Excited utterance
6. State of mind
7. Medical diagnosis
c. If no, FIVES are OK!
i. fact of the utterance
ii. impeachment
iii. verbal acts
iv. effect on the hearer
v. state of mind
d. Is the declarant using the opposing party’s own words against them?
i. This is OK!
TRIGGERS:
o Is someone repeating an out of court statement? – HEARSAY?
o Would it shock the conscious? – unfairly prejudicial?
o Is it something that someone has done in the past? – propensity rule?
o Did they do some good behavior that we want to encourage? – policy exclusion?
o Is it a civil trial?
o NO character witnesses
o Declarant does NOT have to die in dying declaration
o WRITTEN
o
o
RELEVANT RULES:
1. 401 – RELEVANCE
2. 403 – PROBATIVE/PREJUDICIAL
3. 404(a) – PROPENSITY RULE
a. 406 – HABIT
b. 404(b) – PRIOR BAD ACTS
c. 412-415 – SEXUAL PROPENSITY
d. 404(a), 405 – CHARACTER EVIDENCE
4. 601, 602, 603, 608, 609, 611, 701, 702, 703 – WITNESSES
5. 801, 803, 804 – HEARSAY
**ADMISSIBLE: LOOK AT WHETHER THE DEFENDANT OPENED THE DOOR**
RELEVANCE
**this is a LOW bar to meet**
Just has to have a tendency to prove that something is more or less likely
KEY argument for relevance = goes to weight
Direct vs. circumstantial evidence
 Direct = admissible and powerful evidence
 Circumstantial = brick in the wall
o Enough bricks you build the wall to piece together facts giving rise to litigation
o Just have to prove that THIS piece of information has SOMETHING to do with the
case
o Circumstantial evidence of consciousness of guilt = relevant and admissible
 BUT also circumstantial evidence of innocence
RULE 401 – test for relevance
 Relevant if:
o Any tendency to make a fact more or less probable
o Fact is a consequence in determining cause of action
 Must be logically (circumstantial evidence) AND legally (whether it will advance the
case) relevant
o EX: someone raped a 14-year-old but thought she was 21 is NOT legally relevant
because rape = statutory so what he thought doesn’t matter
RULE 402 – generally admissible
 Admissible: if relevant UNLESS violates something else
PROBATIVE VS. PREJUDICIAL
**most important, evidence will probably get thrown out if unfairly prejudicial**
RULE 403 – EXCLUDING RELEVANT FOR PREJUDICE, CONFUSION, WASTE, ETC.
 NOT admissible: if probative value is substantially outweighed by a danger of:
o unfair prejudice
o confusing the issues
o misleading jury
o undue delay
o wasting time

o cumulative evidence
BUT up to judge’s discretion
SO ANALYSIS
1. Prejudicial > probative value = NOT admissible
2. LOOK @ does it shock the conscious?
POLICY EXCLUSIONS
**promote good behavior**
**might be relevant, but still inadmissible**
**even if it is a policy exclusion you CAN still open the door**
RULE 407 – SUBSEQUENT REMEDIAL MEASURES
 NOT admissible: corrective measures taken by litigant that would have prevented injury
or will prevent future injury
 SO can NOT prove:
o Negligence
o Culpable conduct
o Defect in product/design
o Need for warning/instruction
 Admissible: or impeachment
 Admissible: if DISPUTED to prove:
o Ownership
o Control
o Feasibility of precautionary measures
 Admissible: 3rd party remedial measures
RULE 408 – SETTLEMENT NEGOTIATIONS
 NOT admissible: entire statement IF there is a dispute as to liability or $$, not just a
discussion
o suit = dispute
o apologies determined settlement negotiations
 if you determine it’s NOT a settlement negotiation THEN an apology CAN
come in under hearsay exception 801(d)(2) statement against interest
RULE 409 – MEDICAL EXPENSES
 NOT admissible: ONLY the offer to pay medical expenses
o Apologies made during offer ARE admissible
RULE 410 – PLEA NEGOTIATIONS
 NOT admissible: statements made by criminal defendant while negotiating with
prosecutor OR when entering plea in court (allocution)
o EVEN if they end up going to trial
PROPENSITY RULE
**what you’ve done in the PAST cannot come in as evidence**
**MUST be related to facts giving rise to the litigation**
RULE 406 – HABIT
 Admissible: morally neutral specific, repetitive, continuous behavior
o EX: your coffee order, you check your phone when you wake up
 NOT propensity
RULE 404(b) – PRIOR BAD ACTS
**most litigated rule**
 Admissible: when related to MOTIVE, INTENT, PLAN, KNOWLEDGE, or ID
o Needs a causal link between prior bad act and current crime
 ASK yourself: what does the prior bad act have to do with the CURRENT
crime
o Prosecution MUST provide notice of intent to use in criminal case BEFORE trial
o EX: unique ID like branding victims
 If you’ve done it before, it can come in if someone was branded in that
same way in the current crime
 NOT admissible: to prove that someone acted in accordance with their character
 Admissible: prior bad acts of a 3rd party to prove it wasn’t you
RULE 412-415 – SEXUAL PROPENSITY
 NOT admissible: victim’s sexual history/predisposition (rape shield)
o BUT admissible: sexual history between D and P
o BUT admissible: D is arguing that someone else did it if evidence points to
someone else doing it, in this case D isn’t arguing that she consented, not saying
she’s a slut, just that it was not him
 Admissible: criminal defendant sexual ASSAULT history of similar crimes to prove that
he is the type of person who would do this
o ADULT sexual assault evidence if it’s an adult case, no child evidence because it
would be a different case
o MUST disclose to D that you are going to use
RULE 404(a) – CHARACTER EVIDENCE
 Admissible: ONLY after criminal defendant opens the door to their character (they lose
propensity rule protection)
o SO the prosecution CANNOT be the first one to call a character witness
 **LOOK AT SEQUENCE OF EVENTS**
 NOT in government first witness or case in chief
o ONLY the opinion or reputation
 NO specific instances of conduct

o ONLY pertinent traits that are relevant that THIS specific crime
 Violence/peacefulness
 Recklessness/safety-conscious
 Dishonesty/truthfulness
Admissible: specific instances of conduct that contradict one of the pertinent traits
ONLY under cross exam AND with good faith basis
o Character witnesses CAN be cross-examined and put their OWN character for
truthfulness at stake
o CAN offer specific instances to prove how well/not well the witness knows D
SO analysis:
1. Are you trying to get in something they’ve done before?
2. NOT admissible UNLESS:
a. Habit
i. Morally neutral
b. Prior bad act
i. Relates to motive or ID
c. Sexual propensity
i. ONLY D, D with P, or to prove it was someone else
d. Character evidence
i. Opinion or reputation about pertinent traits
ii. Specific instances on cross
WITNESSES/TESTIMONY
**ask non-leading questions on direct**
**ask leading questions on cross**
**witness MUST have firsthand knowledge of facts giving rise to litigation**
CUPID = WHAT WE WANT FROM WITNESSES
 Cross-exam
 Under oath
 Penalty of perjury
 In front of jury
 Demeanor
RULE 601 – COMPETENCY TO TESIFY
 Everyone is generally competent
RULE 603 – OATH
 Must give BEFORE testifying
 Opens door to witness’ truthfulness
RULE 611 – MODE AND ORDER OF EXAMINING WITNESSES AND PRESENTING EVIDENCE



Court should exercise control
Cross exam should not go beyond scope of direct
Leading questions ONLY on cross OR when hostile witness
TYPES OF WITNESSES
 FACT – RULE 602
o Firsthand knowledge (5 senses)
 CHARACTER – RULE 404(a)(2) and RULE 405
o Admissible: OPINION or REPUTATION in CRIMINAL trial ONLY if D opened the
door
 Calling character witness, attacking victim’s character, character already
at issue because of the nature of case (uncommon)
 Claiming SD ≠ automatically opening the door (have to say something like
“I’m peaceful!” or “they were the initial aggressor!”)
o Admissible: specific instances ONLY on cross OR
 if case is about: defamation, negligent entrustment, entrapment, custody
o Admissible: evidence of D pertinent trait
o Admissible: evidence of victim pertinent trait (not relevant unless SD)
o Admissible: victim’s trait of peacefulness if HOMICIDE case ONLY if D opened
door
 EXPERT
o RULE 701 – OPINION BY LAW WITNESS
 If NOT an expert can NOT be based on scientific, technical, or specialized
knowledge
o RULE 702 – EXPERT WITNESS TESTIMONY
 Expert by knowledge, skill, experience, training, education can testify
OPINION
o RULE 703 – BASIS OF EXPERT OPINION
 Must be OPINION
IMPEACHMENT – “can be admissible to establish…”
 Sensory defects
o Admissible: witness did not see/hear/correctly recall relevant facts
 Anything that impacts witness’ senses
o YES! extrinsic evidence
 Bias
o Admissible: witness has an interest in the outcome of litigation because they like
or don’t like D
o YES! extrinsic evidence
 Contradiction
o Admissible: witness said something on stand and something different out of
court
o YES! extrinsic evidence IF evidence is material to heart of litigation


o DIFFERENT from lying (character for truthfulness) where you can NOT bring in
extrinsic
RULE 608(b) – prior acts of deceit
o Admissible: times other than facts giving rise to litigation where witness was
dishonest/deceitful, REPUTATION or OPINION only after witness’ character for
truthfulness attacked
 NO extrinsic evidence BUT you can ask, just stuck with answer
RULE 609 – prior convictions
o Admissible: felony OR dishonest/deceit CONVICTIONS within the past 10 years
(convicted or released, whichever comes LAST)
 ONLY crime, jurisdiction, year NOTHING else
 If they deny, CAN offer certified copy of conviction BUT no extrinsic
evidence
o NOT admissible: if there was a pardon or annulment
o NOT admissible: juvenile adjudications of D (ok if it’s some other witness)
o Admissible: even if there’s an appeal pending
HEARSAY
**reliability problems, what others said is presumptively unreliable**
**presumptively inadmissible**
SO analysis:
 WHO is the declarant?
 WHEN was the statement made?
o In or out of court?
 WHAT is the statement being offered to prove?
 WHAT were the circumstances surrounding the making of the statement?
o Can you get it in under an exception??
FORMULAS:
o OCS + TOMA = HEARSAY
o OCS + NO TOMA = NON-HEARSAY (FIVES)
o Fact of the utterance
o Impeachment
o Verbal acts
o Effect on the hearer
o State of mind
o OCS + TOMA + TESTIFYING WITNESS = EXEMPTION RULE 801(d)(1)
o OCS + TOMA + LITIGANT STATEMENT OFFERED BY OPPOSING PARTY = EXEMPTION RULE
801(d)(2)
o OCS + TOMA + RELIABILITY = EXCEPTION RULES 803 and 804
EXEMPTIONS – CAN come in for the truth IF declarant testifies at current trial
RULE 801(d)(1)(A) – PRIOR INCONSISTENT STATEMENT
 Admissible: sworn prior statement that is inconsistent with what they are currently
saying to prove that witness is lying
o Declarant MUST testify at CURRENT trial
RULE 801(d)(1)(B) – PRIOR CONSISTENT STATEMENT
 Admissible: use to rehabilitate your witness to prove that testimony is NOT product of
recent bias
o Declarant MUST testify at CURRENT trial
o SO only AFTER attacked
o EX: you started dating someone after events giving rise to litigation, introduce
that you said the same thing before you dated to prove you aren’t lying
o Usually after someone opened the door by attacking your character
RULE 801(d)(1)(C) – OUT OF COURT ID
 Admissible: if they made an out of court ID
o Declarant MUST testify at CURRENT trial
o EX: lineup, little Amish boy
RULE 801(d)(2) – PRIOR STATEMENTS OF ADVERSE PARTY
 Admissible: statement offered AGAINST an opposing party AND:
o Made by party or someone in representative capacity
o Adopted to be true
o Person was authorized to make the statement
o Made by agent/employee within scope of relationship
o Made by co-conspirator
EXCEPTIONS – CAN come in and declarant does NOT have to testify at current trial
RULE 804 –
 Declarant UNAVAILABLE
o Privilege applies (attorney client, etc.)
o Refuses despite court order
o Not remembering
o Death or infirmity
o Absent (military)
 Admissible: former testimony where opposing party had opportunity to cross
o FOUNDATION:
 Unavailable
 Previously testified about same subject matter
 Same opposing party
 Opportunity to cross at last proceeding
 Admissible: dying declaration
o FOUNDATION

 Unavailable (homicide)
 Homicide OR civil action (civil declarant does NOT have to die)
 Imminent death
 Statement relates to cause and circumstance of death
 Declarant had firsthand knowledge of cause/circumstance of death
Admissible: statement against interest
o FOUNDATION
 Unavailable
 Against 1) pecuniary interest ($), 2) proprietary interest, 3) penal interest
 Against declarant’s OWN interest at the time it was made
 Declarant subjectively aware against their interest
 If criminal: additional circumstantial corroborating evidence
RULE 803 – INDICIA OF RELIABILITY
 PRESENT SENSE IMPRESSION – describing/explaining event while or immediately after
declarant perceived it
o FOUNDATION
 Event happened when they were speaking
 Declarant had firsthand knowledge
 Statement describes event
 EXCITED UTTERANCE – startling event/condition made while declarant was under the
stress/excitement
o FOUNDATION
 Objectively startling event
 Declaring startled/shocked/excited
 About or relating to event
 Declarant had firsthand knowledge
 STATE OF MIND – declarant’s then existing state of mind “goes to state of mind”
o FOUNDATION
 Declarant had firsthand knowledge
 State of mind at issue or relevant
 Relates to state of mind at the time statement was made
 NOT memories/beliefs/thoughts
 Related to:
 feeling/emotion
 then-existing medical/physical condition
 future intent
 statements made by will testator
 MEDICAL TREATMENT – statements made by PATIENT made for medical
diagnosis/treatment AND describes medical history, symptoms, their inception, or
general cause
o FOUNDATION:
 Statement describing medical condition or symptoms


Statement made for purpose of receiving treatment or assisting with
medical diagnosis
Statements are reasonably related to medical treatment
CONFRONTATION CLAUSE – criminal cases
**right to confront witness and cross exam declarant**
NOT admissible: testimonial statements by unavailable declarant
 Testimonial = statements made about past crime for future prosecution
o EX: calling 911 because you want them arrested
USUALLY problems with 803 rules
SO ANALYSIS:
1. Is it a criminal case?
2. Is it a statement against D?
3. Is it testimonial?
a. Primary purpose use in future criminal prosecution NOT to get help for an
ongoing emergency
4. Did D get a chance to cross-examine the witness?
5. LOOK @ is it an 803 exception?
a. If so, see if CC applies because it likely will