104(a) – Questions of admissibility –
Qualifications of witness or admissibility of
evidence in sole discretion of trial judge.
Privileges in discretion of trial judge under
rules in effect.
201 – Judicial Notice
 (a) – only for Adjudicative Facts
 (b) – must be a fact not subject to reasonable dispute, and either
1) generally known within court’s jurisdiction, or 2) can be proved
by sources whose accuracy cannot be reasonably questioned
 (c) – Court MAY take notice if requested or on its own
 (d) – Court MUST take notice if requested by party and supplied
with necessary info
 (e) – Party requesting judicial notice must be timely heard
 (f) – Notice may be taken at any stage of proceeding
 (g) – In civil cases, judicially noticed facts binding on jury. In
criminal cases, jury MAY disregard any judicially noticed fact
301 – Presumptions –
 Burden of Going Forward - if presumption of fact
introduced, other party has burden of rebutting. If it
can rebut, presumption “bursts” (“bursting bubble”),
otherwise left intact
 Burden of Going Forward NEVER SHIFTS Burden of
Persuasion from party required to prove something –
parties must always persuade factfinder
o In criminal cases, Burden of Persuasion
ALWAYS on prosecution, even when Burden
of Going Forward is on accused
401 – Definition of Relevancy
 Relevant Evidence – evidence that has
any tendency to make a fact more or less
probable to the jury – does it “move the
needle?”
402 – Relevant Evidence Admissible,
Irrelevant Evidence Inadmissible.
403 – Excluding Relevant Evidence – if
probative value of evidence is outweighed
by
 Danger of Unfair Prejudice
 Confusion of Issues
 Misleading the Jury
 Undue Delay
 Waste of Time
 Needlessly Cumulative
404(a) – Character Evidence Generally – Evidence of
character not admissible to prove action in conformity with
character. Exceptions:
 404(a)(1) – Character of Accused in Criminal Cases
o Pertinent Trait offered by accused, or by
prosecution to rebut
o If 404(a)(2) evidence of alleged victim has
been brought in by accused, prosecution may
bring in same trait
404(a) – Character Evidence Generally – Evidence of
character not admissible to prove action in conformity with
character. Exceptions:
 404(a)(2) – Character of Victim in Criminal Cases
o Pertinent trait of victim offered by accused,
or by prosecution to rebut
o In case of homicide where accused says
victim was aggressor, prosecution can offer
peaceful character of victim to rebut
o Both subject to Rule 412 (sex offenses
generally inadmissible)
404(a) – Character Evidence Generally –
Evidence of character not admissible to prove
action in conformity with character.
Exceptions:
 404(a)(3) – Character of Witness –
Evidence under 607, 608, 609
404(b) – Crimes, Wrongs, or Acts – not admissible to prove
action conforming to character
 Can be admitted for other purposes!
o Motive
o Opportunity
o Intent
o Plan
o Preparation
o Knowledge
o Identity
o Absence of Mistake or Accident
405(a) – Proving Character by Reputation
 Can prove character by reputation,
including lay opinion on reputation (no
competence issues!)
 Can cross-examine by asking about
specific instances of conduct
405(b) – Proving Character by Instances of
Conduct – can introduce as part of charge,
claim, or defense
406 – Habit Evidence
 Relevant to prove that conduct (of
individual or organization) was in
conformity with habit or routine
practice
 Doesn’t need to be corroborated or
have eyewitness testimony backing it
407 – Subsequent Remedial Measures –
Inadmissible (Public Policy)
 Exception – admissible for impeachment,
or to prove ownership, control, or
feasibility of precautionary measures
408 – Compromises and Offers to Compromise
 Inadmissible for:
o Proving Liability
o Proving Existence or Amount of Claim
o Impeachment by Prior Inconsistent
Statement
 Admissible for:
o Bias or Prejudice
o Negating Undue Delay
o Proving an Obstruction of Justice
412(a) – Sex Offenses –Victim’s Sexual
History is Inadmissible (exceptions in
412(b))
 412(a)(1) – Evidence that victim
engaged in other sexual behavior
 412(a)(2) – Evidence of victim’s sexual
predispositions
412(b) – Sex Offenses – Victim’s Sexual History Admissible
 412(b)(1) – Admissible in Criminal cases only and IFF is in an
exception
o (a) – To prove that accused was not source of semen,
injury, or evidence
o (b) – To prove that victim consented to sex
o (c) – If exclusion would violate defendant’s
constitutional right (to present a defense and obtain
favorable testimony in his favor)
 412(b)(2) – In civil cases, sexual history is admissible if its
probative value SUBSTANTIALLY OUTWEIGHS danger of
harm or unfair prejudice to victim. Evidence of victim’s
reputation admissible only if placed in controversy.
412(c) – Party introducing evidence under
412(b) must give prior notice and proffer, and
allow court to interview victim in camera and
with all records sealed.
413 – Evidence of Similar Crimes in Sex Assault
Cases
 Evidence that a sex assault defendant has
committed another sex assault admissible and
relevant. Prior Notice and proffer required
 Includes non-consensual sex conduct, deriving
pleasure from inflicting pain or death, or
conspiracy to commit a related act
501 – Privileges – Governed by common law
“in the light of reason and experience.” In
state law cases, apply state rules.
 Spousal Privilege – Spouse cannot be
compelled to testify about communications
with other spouse.
o Does not apply to acts
o Does not apply to joint criminal activity
o Does not apply if one spouse chooses to
testify against other spouse – privilege
applies only if being forced to speak
 Attorney-Client Privilege – Lawyer
cannot be compelled to reveal
confidences/secrets of a client (whenever
Rule 1.6 applies, so does the privilege),
even if client is dead
 Work Product Privilege – Lawyer cannot
be compelled to discuss conversations
with other lawyers or produce documents
prepared in anticipation of litigation.
Can be overridden with showing of good
cause and in camera inspection to
determine relevance, prejudice,
unavailability of other means of
acquiring testimony
 Reporter-Source Privilege – Reporter cannot be
compelled to reveal their sources. Not
constitutionally required, not in all states, no
federal law. Can be overridden with showing
of good cause (especially for Sixth Amendment
compelling evidence) and in camera inspection
to determine relevance, prejudice,
unavailability of other means of acquiring
testimony
 Doctor-Patient Privilege – Doctor cannot
be compelled to discuss patient
information disclosed in the course of
obtaining medical treatment.
 Therapist-Patient Privilege –
Psychotherapist cannot be compelled to
discuss patient information disclosed in
the course of obtaining therapy or
psychiatric treatment.
 Clergy-Communicant Privilege – Clergy
who offer spiritual counseling cannot be
compelled to discuss information
disclosed by communicants in the course
of counseling
601 – Competence – All witnesses are
presumed competent until rules say otherwise
602 – Witness cannot testify unless evidence
shows they have personal knowledge of the
matter (including their own testimony), or
experts under 703
607 – Credibility of Witnesses can be
impeached by any party, including the calling
party!
608(a) –Character/Conduct of Witness can
be attacked through Opinion and
Reputation evidence, subject to limitations
 608(a)(1) – Only for
truthfulness/untruthfulness AND
 608(a)(2) – Only after character for
truthfulness has been attacked
608(b) –Character/Conduct of Witness can
be attacked by specific incidents of conduct,
but they CANNOT RELY ON EXTRINSIC
EVIDENCE. But they can be used on cross
to impeach character for truthfulness or
testimony about the truthfulness of another
witness they’re testifying for.
609(a) – Impeachment by Evidence of Conviction
of Crime Admissible
 609(a)(1) – Conviction for crime not
involving dishonesty admissible IFF:
o Crime was a felony
o Rule 403 Balancing Test– Does
probative value outweigh prejudice?
 609(a)(2) – Conviction for a crime involving
dishonesty always admissible w/o factors of
609(a)(1)
609(b) – Convictions older than ten years inadmissible (dated from
conviction or release), unless court determines that probative value
outweighs prejudicial effect.
609(c) – Convictions annulled by pardons, certificate of rehab, or
finding of innocence inadmissible
609(d) – Juvenile crimes inadmissible, except to impeach credibility
of witness (not accused), and court is satisfied that evidence is
necessary.
609(e) – Pendency of appeal does not make a conviction
inadmissible, but the appeal itself is admissible
610 – Evidence of Religious Belief or Opinion
of a witness inadmissible
611(a) – Court controls mode and order of
evidence to make trial effective, avoid wasting
time, and protect witnesses from harassment or
undue embarrassment
611(b) – Cross-examination limited to subjects
raised on direct examination and witness
credibility. Everything else requires court
permission.
611(c) – Leading questions (questions that
suggest an answer) cannot be used on direct,
except as necessary to develop testimony (e.g.
with very young children). Exceptions:
 Hostile witness
 Adverse party
 Witness identified with an adverse party
612 – If using a writing to refresh a witness’ memory, either
before or during testimony, other party can have writing
produced at hearing, cross-examine witness, and introduce
relevant portions of the writing into evidence.
 Court can review writing in camera to excise any
irrelevant portions. Court can also strike testimony or
declare a mistrial in case of non-delivery to other party
 613(a) – Examining Prior Statement of Witness –
statement need not be shown to witness on stand, but
must be disclosed to other party.
613(b) – Extrinsic Evidence of Prior
Inconsistent Statement is INADMISSIBLE
unless witness has opportunity to explain or
deny, and other party gets to ask the witness
about it. Rule does not apply to admissions of
a party opponent under 801(d)(2)
701 – Lay Witness Opinion Testimony –
limited to inferences:
 (a) Rationally based on perception of
witness
 (b) Helpful to court in fact-finding
 (c) Not based on specialized knowledge
(that’s expert testimony under 702)
702 – Expert Testimony – admissible if it will assist
fact-finder and witness has appropriate skill,
experience, or training, and…
 (1) Testimony is based upon sufficient facts or
data
 (2) Testimony is the product of reliable
principles and methods
 (3)Witness has applied the principles and
methods reliably to the facts
 FOUR DAUBERT FACTORS (TEPA)
– also apply to engineers (Kumho Tire)
o Has it been Tested?
o What is the Error rate?
o Has it been Peer-reviewed?
o Is the methodology generally
Accepted in the
scientific/engineering
community?
703 – Bases of Opinion Testimony
 Facts or data that expert testimony is
based on need not be admitted if they are
reasonably relied upon by other experts.
Facts inadmissible will not be disclosed
to the jury unless court finds under 403
that probative value outweighs prejudice.
704 – Experts can offer an opinion on the
ultimate issue to be decided by the trier of fact.
 Exception: an expert CANNOT state if a
criminal defendant did or did not have a
mental state constituting an element of a
crime charged or a defense to it
801 – Hearsay Definitions
 (a) – “statement” can be oral, written, or
non-verbal conduct
 (b) – “declarant” is one making a
statement
 (c) – “Hearsay” is a statement other that
one made by a declarant in court offered
to prove the truth of the matter asserted
801(d) – Statements Which AREN’T Hearsay
 801(d)(1) – Prior Statements by Witness – NOT
hearsay if they are
o 801(d)(1)(a) – inconsistent with present
testimony and given under oath at trial or
hearing, or in a deposition
o 801(d)(1)(b) – consistent with present
testimony and offered to rebut an assertion
of recent fabrication or improper influence
or motive
o 801(d)(1)(c) – an identification of a person

801(d)(2) – Admissions by party opponent – NOT hearsay if they are
o 801(d)(2)(a) – Party’s own statement, either as individual or
representative of organization
o 801(d)(2)(b) – Statement that the party has manifested a
belief in its truth
o 801(d)(2)(c) – Statement of a person authorized by a party to
make it
o 801(d)(2)(d) – Statement of a party’s agent or employee
concerning a matter within the scope of their employment
o 801(d)(2)(e) – Statement of a co-conspirator of a party in the
course of and in furtherance of the conspiracy
o (c)(d)(e) – statement can be offered, but is not itself proof of
authorization, agency, or conspiracy
802 – Hearsay is NOT admissible (unless
there’s an 803 exception…)
803 – Hearsay Exceptions – Availability of
Declarant Immaterial
 803(1) – Present Sense Impression –
statement describing/explaining event in
progress or immediately after
803 – Hearsay Exceptions – Availability of
Declarant Immaterial
 803(2) – Excited Utterance – statement
about startling event/condition while
declarant excited
803 – Hearsay Exceptions – Availability of
Declarant Immaterial
 803(3) – Mental, Emotional, or Physical
Condition – statement of declarant’s then
existing state of mind, emotion, or
physical condition
803 – Hearsay Exceptions – Availability of
Declarant Immaterial
 803(4) – Medical Diagnosis – statement
made for purpose of a medical diagnosis
or a statement of symptoms/ pain/
sensation
803 – Hearsay Exceptions – Availability of Declarant
Immaterial
 803(5) – Recorded Recollection – When witness wrote
down information that they now have no knowledge of
while the matter was fresh in their mind, the writing
may be used to help recollection.
o If admitted, the document itself does not go into
evidence unless introduced by other party.
(DIFFERENT from 612)
803 – Hearsay Exceptions – Availability of Declarant
Immaterial
 803(6) – Records of Regularly Conducted
Activity – Reports/Data made at the time by
people with knowledge, and kept in the course
of business according to general practice
o Exception: Source, method, or
circumstances show lack of
trustworthiness
803 – Hearsay Exceptions – Availability of
Declarant Immaterial
 803(7) – Absence of Records – if no
records under 803(6), to prove
nonexistence or nonoccurrence of a
matter. Exception for lack of
trustworthiness
803 – Hearsay Exceptions – Availability of Declarant
Immaterial
 803(8) – Public Records – Government Records,
reports, statements or data, showing:
o (a) regular activities of office or agency, or
o (b) matters observed pursuant to duty imposed
by law where there is a duty to report. (Does
not apply to police reports in criminal cases)
o (c) In civil cases, findings of fact resulting from
an investigation pursuant to authority granted
by law (except for lack of trustworthiness)
804 – Hearsay Exceptions – Declarant Unavailable
 804(a) – A declarant is unavailable when:
o (1) Testimony is privileged
o (2) Refuses to testify
o (3) Asserts a lack of memory
o (4) Can’t testify because of death, or physical or
mental illness
o (5) Party unable to compel declarant’s
attendance (or prior testimony) by process
o Wrongdoing by party voids unavailability!

804(b) – Hearsay Exceptions ONLY IFF declarant unavailable
o (1) Former Testimony, if offered under oath (hearing,
deposition, etc.) and other party had opportunity and cause
to cross-examine declarant
o (2) Dying Declaration – in homicide cases or civil actions,
statements made by declarant while believing death was
imminent, concerning cause of death
o (3) Statement Against Interest – statement so contrary to
declarant’s interest (e.g. subjecting them to civil/criminal
liability, invalidating claim), that a reasonable person would
not have said it unless they believed it to be true
 Exception: Declarant’s confession to crime
offered to exculpate defendant INADMISSIBLE
unless corroboration clearly shows trustworthiness
805 – Hearsay within Hearsay – IFF each part
of the combined statement fits an exception!
806 – Attacking/Supporting Credibility of Declarant
 Declarant making hearsay statement (or statement
under 801(d)(2)(c,d,e) showing authorization, agency,
or conspiracy) can have credibility attacked on cross
 Attack may be supported by any evidence admissible if
declarant was a witness
 Evidence of prior inconsistent statement – declarant
does not have to have opportunity to deny or explain
 If party opponent calls declarant as a witness, they can
examine as if it was on cross
901(a) – Authentication/Identification – Evidence admissible if there is sufficient
evidence to support a jury finding that the evidence is what proponent says it is.
901(b) – Examples
 901(b)(1) – Testimony of a witness with Knowledge admissible
 901(b)(2) – Lay opinion on handwriting genuineness admissible, if based
upon prior familiarity with source
 901(b)(3) – Comparisons by trier of fact or expert witness with specimens
that have been authenticated admissible
 901(b)(4) – Testimony on distinctive characteristics of a person or thing
(appearance, contents, substance, patterns, in conjunction with
circumstances)
 901(b)(5) – Voice Identifications, either firsthand or by electronic
transmission or recording, if under circumstances connecting voice to
alleged speaker
1001 – Writings, Recordings, and Photographs – Definitions
 1001(1) – Writings and recordings – words or sounds
set down by writing or electronically
 1001(2) – Photographs – stills, x-rays, videos, movies
 1001(3) – Originals – writing/recording itself or
counterpart having same effect (includes photo
negatives and computer printouts)
 1001(4) – Duplicates – anything that accurately
reproduces original
1002 – Originals required
1003 – Duplicates allowed to same extent as
original unless genuine question raised as to
authenticity or if admission would be unfair.
(Photocopies always treated as originals)
1004 – Original not required if:
 1001(1) – Original lost or destroyed (unless
lost/destroyed in bad faith)
 1001(2) – Original cannot be obtained by
available process
 1001(3) – Original in possession of opponent
that does not produce it after notice
 1001(4) – Writing only related to collateral matter