DOCUMENTS / WRITINGS
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B.
II.
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III.
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IV.
V.
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Pretrial Admissibility Determinations
Motion in Limine – to admit or suppress
Motion to Suppress – if evidence was obtained in an unconstitutional manner
Facial Logical Relevance
Bare Logical Relevance
1. Does it tend to increase/decrease the probability of some fact being true?
2. Give a factual answer if bare logical relevance is questioned.
Materiality
1. Relates to an issue of law in the case.
2. Give a legal answer if materiality is questioned.
Underlying Logical Relevance = Authentication
Sponsoring Witness  Competency – Oath, Observe, Remember, Narrate
Mark the Evidence & Show to Witness
Foundation or Predicate (p. 9)
1. Private Writings – FRE 901, 902
2. Business Records – FRE 901(b)(9)
3. Govt Documents – FRE 902
4. Photographic Evidence – p. 11
5. Tape Recordings – p. 10
Formal Tender or Motion for Admission
Potential Objections
Competency of the Witness – Personal knowledge?
Legal Irrelevance: FRE 403 – Probative danger outweighs the probative value
1. Dangers: Unfair prejudice, confusion of the issues, misleading the jury, undue delay,
waste of time, needless presentation of cumulative evidence
2. Value: Apparent flaws, intermediate inferences required, strength of the inference,
other means of proof
3. Gory & gruesome pictures (p. 11-12) – argue that danger > value, but if it illustrates a
controverted fact of the case, then it probably will be allowed even though gruesome.
Hearsay  LOOK FOR DOUBLE HEARSAY!!! Document will get in under some kind
of writing exception but content may come in under same or different exception.
1. Framework for Analysis
a. Is it an assertion?
(1) If No – then not hearsay
(2) If it communicates a fact through statement, writing, or conduct, go to next Q
b. Is it offered to prove the truth of the matter asserted?
(1) Who is the declarant?
(2) What is being asserted?
(3) How can assertion be used?
(4) How is it being used HERE?
(a) If for truth of matter asserted – it is hearsay
(b) If for other reason – go to next Q
c. Is this an out-of-THIS-court statement?
(1) If No – then not hearsay
D.
VI.
A.
VII.
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B.
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(2) If Yes – does it fall under an exemption
(a) Based On Witness
i. Prior inconsistent statement by witness
ii. Prior consistent statement by witness
iii. Prior identification
(b) Based on Admission
i. Personal admissions
ii. Adoptive admissions
iii. Vicarious admissions
(3) Does it fall under an exception? Some of the most relevant as follows:
(a) Present Sense Impressions [FRE 803(1), p. 38] & Declarations of Bodily
Condition (e.g. medical documents & repair estimates 
i. Contents – PSI
ii. Doc itself – 803(3) & 803(4)
(b) Business Records – FRE 803(6) – p. 41
(c) Public Records – FRE 803(8) – p. 43
(d) Learned Treatises – FRE 803(18) – p. 44
(e) Past Recollection Recorded – FRE 803(5) – p. 46
(f) Judgment of a Previous Conviction – FRE 803(22)
(g) Former Testimony – FRE 804(b)(1) – p. 47 [see p. 48 – Forms]
(h) Residual Exception – FRE 807 – p. 51
Best Evidence Rule – see p. 56
1. Original v. Duplicate
a. If original, then no best evidence problem.
b. If duplicate, then proceed with analysis.
2. Adequate Excuses for Not Having an Original?
3. Admissible Secondary Evidence = Substitute Ways of Showing
Objection is Sustained
Offer of Proof (KB 16)
1. What the evidence would have shown.
2. The logical relevance + the legal relevance.
3. Restate the foundation.
Objection Overruled  Publication to the Jury
If tape recording
1. Recording is the evidence
2. Might get transcript
3. Might decide what words are correct
4. Might decide if the speakers are correctly identified
If learned treatise, it either will be:
1. Read into evidence
2. Introduced as exhibit by opponent  Goes to the jury room
If not a learned treatise  Goes to the jury.