Evidence RULES Outline 2L Spring
(a) substantial right MUST be
FRE 103 – Rulings on Evidence
(a) Effect of erroneous ruling
(1) OBJECTION
(2) OFFER OF PROOF
(b) Record of offer and ruling
(c) Hearing of jury
(d) Plain error
FRE 104 – Preliminary
Questions
(a) General admissibility
(b) Relevancy conditioned on
fact
(c) Jury
(d) Testimony by accused
(e) Weight and credibility
FRE 106 – Remainder of
Writings or Statements
*available to ADVERSE PARTY
ONLY
FRE 401 – Relevant Evidence
Definition
(1) Probative
(2) Material
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affected in order for there to be
an error on the admittance of
evidence
(1) admit - must object TIMELY
(2) exclude – substance must be
shown
(b) Court can add statements in
relation to evidence (Q&A form)
(c) When jury present
INADMISSIBLE evidence will be
stopped from getting in
(d) Court discretion
(a) PRELIMINARY QUESTIONS - FRE 104(a)
Qualifying witnesses; admission  JUDGE:
of evidence – Court Discretion (1) Some issues of fact -
(b) Must provide sufficient support whether the utterance is
for the factual point by excited, whether a witness
preponderance of evidence – qualifies as expert
Court decides if reasonable jury (2) What’s legally relevant
could make the inference (3) Witness qualification
(c) Admissibility confessions (4) Impeachment issues
ALWAYS without jury (5) Best Evidence Rule
(d) NOT automatically subject to (6) Privilege issues
CROSS  JURY:
(e) Free to offer evidence relevant (1) Issues of fact (most)
to weight or credibility *conditional relevancy too!
Can require the entire document or
statement to be offered if part of it
is referred to in evidence
any tendency to make the fact more
probable or less probable than it
would be without the evidence
 Evidence RULES Outline 2L Spring

FRE 402 - Relevant Evidence ALL relevant evidence is admissible

GENERALLY admissible;
Irrelevant NOT
FRE 403 – Exclusion of
Relevant Evidence
(1) Prejudice
(2) Confusion – Collins, p61
(3) Waste of time - Old
Chief, p77
FRE 407 – Subsequent
Remedial Measures
FRE 408 – Compromise
(a) Prohibited Uses
(b) Permitted Uses
*applies to non-parties as well
**FRE 403 still applies
***DOES NOT apply to
CRIMINAL CASES
EXCEPT when otherwise stated by
USC, Congress, or other rules.
Evidence that is NOT relevant is NOT
admissible
MAY be excluded when its probative Correction of Error: Must be a clear
value is substantially outweighed by abuse of discretion; appeal if
prejudice, confusion or waste of
time
 Prohibited Purposes
(1) Negligence
(2) Culpable conduct
(3) Defect in a product
(4) Defect in product’s design
(5) Or need for warning or
instruction
(a) Prohibited Purposes:
(1) Impeachment - an
inconsistent or
contradictory statement
o Validity of a claim
o Amount of damage
substantial right is infringed upon
 Allowed Purposes (Non-
exhaustive list)
(1) Proving ownership
(2) Control
(3) Or feasibility of precautionary
measures
(4) Controverter
(5) Impeachment
(b) Allowed Purposes (Non-
exhaustive list):
(1) Proving bias
(2) Negating undue delay claim
(3) Proving obstruction

FRE 409 – Medical Expenses NOT admissible to prove liability

FRE 410 – Pleas in Criminal  Prohibited Purposes:  Permitted Purposes:

Cases
NOT ADMISSIBLE IN CIVIL OR
CRIMINAL CASES AGAINST THE
DEFENDANT WHO MADE THE
PLEA
(1) Deals with guilty pleas that are (1) FRE 106 – entire statement
later withdrawn has to be admitted for fairness
(2) No contest pleas purposes
(3) Any statement made to the (2) Criminal ONLY – perjury or
police that are in regard to the false statement purposes
pleas
(4) Any statement made in course
of the same plea in relation to
another issue

FRE 411 – Liability Insurance  Prohibited Purposes:  Permitted Purposes

 Evidence of lack of or (1) Negligence (1) Ownership
presence of liability (2) Control
insurance (3) Bias of witness

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 Evidence RULES Outline 2L Spring

FRE 404 – Character (a) Evidence to prove conformity

Propensity Rule
(a) Character evidence
generally
(1) Character of accused
(2) Character of alleged
victim
(3) Character of witness
(b) Other crimes, wrongs or
acts
(b) Permissible Uses (Non-
with a particular act NOT
allowed
(1) D can offer evidence about
his own character AND then
P can rebut
(2) P can rebut attacks AND
then can refer to D’s
character in rebuttal
(3) P can impeach on good faith
basis – truthfulness issue
exhaustive list):
(1) Motive
(2) Knowledge
(3) Identity
(4) Absence of mistake

FRE 405 – Methods of Proving (a) DIRECT – reputation and/or

Character opinion is allowed; CROSS –
(a) Reputation or opinion relevant specific instances are
(b) Specific instances of allowed
conduct (1) Acquaintance
(2) Community ties
(a) (b) Essential element of charge,
claim or defense allows SPECIFIC
ACTS
FRE 406 – Habit  conduct that is specific and non  Must be able to show on voir
Habit is relevant evidence volitional; must show a pattern dire that he expects to prove a
whether or NOT it is of repeated behavior sufficient number of instances
corroborated  Limitations: of the conduct in question
(1) Evidence of other assaults is o Must be predictive
inadmissible for habit of an conduct
instant crime o Can use specific acts
(2) Regular drinking to prove it
(3) Regular smoking

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FRE 607 – Who’s Impeachable
You can impeach ANY witness
FRE 608 – Evidence of
Character and Conduct of
Witness
(a) Opinion and reputation
evidence of character
(b) Specific instances of
conduct
FRE 609 – Impeachment by
Evidence of Conviction
(a) any party past conviction
of a ‘serious or deceptive
crime’
(b) time limit
(c) pardon
(d) juvenile record
(e) pending appeal
FRE 610 – Religious Beliefs
FRE 611 – Mode and Order of
Interrogation and Presentation
(a) Control by court
(b) Scope of cross
(c) Leading questions
FRE 612 – Writing Used to
Refresh Memory
FRE 613 – Prior Statements of
Witnesses
(a) Examining witnesses
(b) Extrinsic evidence of prior
inconsistencies
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Evidence RULES Outline 2L Spring
You can even attack you OWN
witness
(a) Attacks on witness’ credibility
MUST be in reputation/opinion
form BUT LIMITED TO:
(1) Truthfulness AND
(2) Evidence of truthfulness can
ONLY be offered to REBUT
an attack
(b) Can NOT use extrinsic evidence
when using specific instances
(up to the court to allow
inquires about them)
(a) attacks on truthfulness allowed
when:
(1) convicted of a crime
punishable by death or
prison over a year AND
(2) regardless of punishment if
necessary
(b) NOT admissible if over 10 yrs old
unless given a fair opportunity
to rebut
(c) Not admissible
(d) Not admissible
(e) Admissible
evidence of such is NOT admissible
for purpose of showing credibility is
impaired or enhanced – applies to
truthfulness
(a) Judge has discretion of how
questions are asked
(b) Limited to subject matter
addressed in direct
(c) NOT permitted in direct
Written documents can be used for
refreshing purposes
(a) Does NOT have to be disclosed
(b) NOT admissible UNLESS witness
is allowed to explain or deny the
evidence

FRE 614 – Callings and
Interrogation of Witnesses by
Court
(a) Calling by court
(b) Interrogation by court
(c) Objections
FRE 615 – Exclusion of
Witnesses
FRE 412 – Sex Offense Case –
Victim’s Past Sexual Behavior
5|Page
Evidence RULES Outline 2L Spring
(a) Court can call witnesses
(b) Court can interrogate witnesses
(c) Objections to witnesses being called
or interrogated are available when
jury is NOT present
 Victim can NOT be excluded unless  Typically expert witnesses are
there is clear and convincing allowed to stay; officers as well
evidence (greater standard than
preponderance of evidence)
 Applies to BOTH civil and criminal C. PROCEDURAL
EXCEPT (b) and (c) (1) Party intending to offer
A. Prohibited Purposes: evidence MUST
(1) Evidence of the alleged victim’s a. File motion at least 14 days
other sexual behavior b. Serve the motion on all parties
a. All activities that include (2) Will be an in camera
sexual contact hearing in the judges
b. All things that imply (i.e. chambers – must also give
illegitimate children, etc.) the victims a right to
c. Statements that show a attend and be heard – ALL
desire to engage in sexual MUST BE SEALED
activity Different from FRE 404 that allows the
(2) Evidence about the alleged defendant to talk about the victim’s
victim’s sexual disposition character
a. Mode of dress, speech,
lifestyle
B. EXCEPTIONS
(1) CRIMINAL CASES:
a. To prove another person
committed the injury
b. To prove consent AND
c. Evidence that the exclusion
would violate the constitutional
rights of the defendant (fair and
impartial trial – 6th Amendment)
(2) CIVIL CASES:
a. (reversal of FRE 403 weighing
standard) behavior and sexual
disposition evidence is
admissible if probative value
outweighs danger of harm to
victim and unfair prejudice to
any other party – reputation is
admissible ONLY if it has been
placed into controversy by the
victim
 Evidence RULES Outline 2L Spring

i. Presumption that any use of

these prior acts or proof of
disposition will be unfairly
prejudicial

FRE 413 – Evidence of Similar
Crimes in Sexual Assault Cases
FRE 414 – Child Molestation
FRE 415 – Similar Crimes (Child
or Sexual Assault)
(a) In cases about sexual assault  conditional relevance issue –
offenses about other sexual overrides 104(b)
offenses AND any other matter to  overrides 404(b)
which it is relevant
(b) notice requirement
(c) his rule does NOT limit any other
rule (i.e. FRE 403)
(d) definition of sexual assault
1. conduct
2. contact without consent
3. …between genitals, anus
4. Getting sexual pleasure
from torture
5. Attempt or conspiracy to
do any of the above
(a) same as above
(b) same as above
(c) same as above
(d) definition of child molestation
(a) admissible like FRE 413 and FRE 414
(b) notice requirement
(c) does not limit ANY other rule (I.e.
FRE 403)

FRE 801 – Hearsay (a) Oral or written assertion – HEARSAY TEST

(a) statement  If NON-VERBAL then it MUST be (1) Is the litigant offering the
(b) declarant intended to be an assertion by statement to prove (the truth of)
(c) hearsay the declarant what it says or was meant to say?
(d) statements that are NOT (b) Person who makes the statement a. Implications do NOT violate
hearsay (c) I hear what another says and I hearsay rule
(1) prior statement by repeat what another says b. NOT inadmissible if has
witness (d) Statements NOT hearsay relevancy outside of
(A) past inconsistent (1) Prior statement by witness asserting truth (i.e. declarant
(B) past consistent (A) In court statements therefore can speak, state of mind)
(C) statements of subject to cross examination (2) Did the declarant assert the fact?
identification (B) Consistent BUT rebutting charge a. Indirect assertions –
(2) admission by party against declarant of improper instructions, questions,
opponent motive (must have been said commands are NOT usually
(A) party’s own prior to the allegation) hearsay (but if trying to imply
statement (C) Identification AFTER perception an assertion then they are)
(B) adoptive statements (i.e. pointing out people) b. Legally operative words
(C) spokesperson (2) Admission by party opponent FOUR TESTIMONIAL CAPACITIES:

6|Page

(D) agents
(E) Conspiracy
FRE 802 – Hearsay Rule
FRE 803 – Hearsay Exceptions:
Availability of Declarant
Immaterial
(1) Present sense impression
(2) Excited utterance
(3) Then existing mental,
emotional or physical
condition
(4) Statements for purposes of
medical diagnosis or
treatment
(5) Recorded recollection
(6) Records of regularly
conducted activity
(7) Absence of entry in records
via #6
(8) Public records and reports
(9) Records of vital statistics
(10) Absence of public
record or entry
(11) Records of religious
7|Page
Evidence RULES Outline 2L Spring
(declarant MUST be a party in
current)
(A) Party’s own statement
(individual or from
representative)
(B) Adopted truth or belief of its
truth
1. Must prove the silent party
actually heard it and
understood it (declarant’s
statement)
2. Silent party must have
been at liberty to respond
3. Circumstances naturally
call for some type of
response
4. Failure to respond to rebut
or deny assumption
(C) Representative statement
(D) Agent speaking within their
scope of their employment
(regardless if have authority to
speak for principal)
(E) Co-conspirator – must be in
furtherance of the conspiracy
Hearsay is NOT admissible UNLESS the
rules say otherwise
(1) Statement must be describing or
explain an event or condition while
the declarant was perceiving it or
immediately thereafter (i.e. seeing
someone getting robbed)
a. Temporal requirement (only
ABOUT the event)
(2) Statement made while under the
stress of excitement caused by
event
a. Reliability associated with the
stressful event (related to the
event) (limited time to reflect)
(3) Statement of declarant’s THEN state
BUT NOT about memory or belief
a. Present bodily condition (doesn’t
matter who it is said to)
b. Statements of present state of
mind offered to prove state of
mind @ issue (must be about the
declarant’s state of mind)
(1) Meaning
(2) Perception
(3) Memory
(4) Sincerity*
LIMITATIONS
 Statements are NOT sufficient to
prove existence of agency or
conspiracy
 FRE 801(d)(2) do NOT have to be
first hand knowledge
SPECIFICATIONS:
(1) ONLY ABOUT THE EVENT
(2) Relating to event and other things
associated with it
a. Lapse in time?
b. Age of declarant?
c. Physical and mental state of
declarant?
d. Characteristics of event
e. Subject matter of the
statements
(3) ONLY APPLIES TO DECLARANT’S
STATE OF MIND! –
(present/future)
a. Present bodily condition
(doesn’t matter who it is said
to)
b. Statements of present state of
mind offered to prove state of
mind @ issue (must be about
the declarant’s state of mind)
 Evidence RULES Outline 2L Spring

organizations c. Statements of present state of c. Statements of present state of

(12) Marriage, baptismal mind (usually via INTENT, PLAN, mind (usually via INTENT,
and similar certificates or DESIGN used to prove PLAN, or DESIGN used to prove
(13) Family records subsequent conduct in subsequent conduct in
(14) Records of documents conformity with state of mind) conformity with state of mind)
affecting an interest in d. Statements of a testators offered i. If state of mind is part of
property in will cases the crime then it is
(15) Statements in (4) statements made for the purposes admissible
documents affecting an diagnosis or treatment (statements d. Statements of a testators
interest in property made to expert witnesses) offered in will cases
(16) Statements in ancient (5) record of what is now forgotten but (4) Statements as to fault- USUALLY
documents was previously documented when PROHIBITED!
(17) Market reports, fresh in mind a. Does NOT have to be to a
commercial publications (6) FOUR components for admissibility doctor
(18) learned treatises of a statement (5) Can be admitted – but adverse
(19) reputation concerning (1) Must be made and kept in the party must offer it
personal or family history regular course of business (6) UNLESS source of information OR
(20) reputation concerning (2) Records are made from regular the method or circumstances of
boundaries or general practice preparation are
history (3) Records were made at the time UNTRUSTWORTHY
(21) reputation as to it happened  you can NOT admit what they
character (4) Records made by or from said can ONLY admit what the
(22) judgment of previous information by the person with custodian report after their
conviction knowledge – who acted within observation
(23) judgment as to the regular course of business (7) formation that would have been
personal, family, or general (custodian or otherwise included or ought to be included
history or boundaries qualified witness) its absence is relevant to show
a. person who does this = that it wasn’t documented in the
custodian (does NOT first instance
necessarily need to know (8) ONLY APPLIES WHEN
what is in the documents GOVERNMENT TRIES TO ADMIT
in detail) THE EVIDENCE AGAINST
(7) usually recorded like in (6) BUT was DEFENDANTS IN A CRIMINAL
missed CASE
(8) statements that include facts and
those that continue opinions about
those facts as well (most courts will
read it broad like this) –
(1) Activities of the office or agency
a. NOT all public record keeping
will make it under this
(2) Matters where there is a duty to
report – excluding police officers
and other law enforcement
personnel (inadmissible UNLESS
confrontation clause is fulfilled)
a. Witness statements; police
reports

8|Page

FRE 804 – Hearsay Exceptions;
Declarant Unavailable
(a) Unavailability
(b) Hearsay exceptions
FRE 807 – Residual Exception
9|Page
Evidence RULES Outline 2L Spring
(3) Civil actions against government
in criminal cases
(a) Applies to following situations  Person offering the declarant’s
(1) Exempt – invoke a privilege (i.e. statement has to prove that FRE
self incrimination, etc.) – NOT 804 is fulfilled
about the availability of the  NOT unavailable if any of 5
person but the testimony that reasons are because of the person
they have to offer offering the statement made
(2) Refused to testify them unavailable wrongly
(3) Lack of memory
(4) Physical or mental illness (sick)
(5) Ducking the court
(b) NOT EXCLUDED by hearsay rule
(1) Former Testimony (different
from 801(d)(1) where they have
to testify at the hearing)
a. Opportunity – possibility for
cross examination by the
defendant
1. Does apply to
depositions too though!
b. Similar motive – someone
with a similar motive had the
opportunity to cross examine
the witness
(2) Impending death – last dying
declaration
(3) Statement against interest – at
the time the statement was
made, it was completely against
the interests of the declarant
therefore would NOT have said it
unless they believed it to be true;
a situation where the declarant
makes a statement that is
exculpatory for the defendant
but puts the declarant in danger
of criminal liability
(4) Statement of personal or family
history
(5) Moved
(6) Forfeiture by wrongdoing –
proof that the reason the witness
is unavailable is because of
someone’s wrongdoing
has circumstantial trustworthiness is
 Evidence RULES Outline 2L Spring

NOT excluded if
(1) About a material fact
(2) More probative on the point
than any other evidence AND
(3) Its only fair to admit the
evidence (best interests of
justice)
 CAN NOT admitted if not told to
the opponent well in advance
(notice requirement)

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