EVIDENCE WALKTHROUGH

(1)What are you trying to prove?

a. Why do we need to know?
i. Determines whether evidence is relevant under 401
ii. Most of the exclusionary rules specify X evidence is not admissible for
Y reason.
(2)Evidence not more or less relevant; its relevant or not
a. Make a fact of consequence more or less probable
b. Doesnt need to get jury to the conclusion, just has to give them a piece of
the story
(3)Evidence not admissible just because its relevant
a. Might be under 104
(4)In order to be relevant/admissible, it must have foundation
a. 901, 902 physical evidence
b. 601-603 testimony
(5)If you miss (1) relevance, (2) admissibility, or (3) foundation youve lost
(6)403 CATCH ALL/Fall Back.
a. Might still exclude for prejudice, confusion, waste of time, or other things like
it
b. Think about purpose of the rules when you have a close question
(7)If you miss everything up to this point and want to keep something out:
a. 501 for privileged communications
b. 502 for attorney-client privilege
(8)400 RULES youve cleared everything else, but we have a societal interest in not
letting this in.
a. More important than the search for truth in this interest
b. 404 Character evidence
i. Remember impeachment rules 607-609
ii. Always entitled to impeach
iii. Generally by reputation or opinion
c. 405 Proving Character evidence
d. 406 Habit; Routine
i. One of the loosest rules there is
ii. Almost always admissible
iii. Allow it b/c its so routine that its fairly predictable that they would
have acted that way under any circumstances
e. 407 Subsequent remedial measures
i. Limits only certain proofs
f. 408 Compromise Offers and Negotiations
i. Can use negotiation or compromise to prove either culpability or
amount of claim
ii. Can still include evidence of negotiations, just not to prove things
specified in rule
iii. Purpose is to encourage settlements
g. 409 Offers to pay medical and similar expenses
i. Same as 408 cant use to prove liability for injury
ii. Want to encourage parties to pay expenses
h. 410 Pleas, Plea Discussions, and Related Statements
i. 411 Liability Insurance
i. We want people to have insurance

1. Cant use to prove liability

2. Can use for agency, ownership, control
(9)Opinion Rules
a. 701 Opinion Testimony by Law Witnesses
i. Must be:
1. Rationally based on witness perception (5 senses, personal
knowledge)
2. Helpful to the jury in understanding what your perception was
3. Not based on scientific, technical, or other specialized knowledge
(702)
b. 702 Testimony by Expert Witness
i. NOT BOUND BY 602 no need for personal knowledge
ii. Requirements:
1. Help trier of fact to understand evidence or determine a fact in
issue;
2. Based on sufficient facts or data;
3. Product of reliable principles and methods; and
4. Reliable applied principles and methods to the facts of the case
c. 704 Opinion on an Ultimate Issue
i. Not automatically objectionable just b/c it embraces an ultimate issue
ii. BUT, cant use it to prove whether a criminal did or didnt have a
mental state or condition constituting an element of the crime charged
or of a defense
(10)
Best Evidence Rules: 10XX
a. If its a writing, photograph, etc. youre supposed to have the original
i. But photocopies are fine unless theres a real question of authenticity
ii. Need to have someone testify under 902 that what youve brought as
evidence is what you purport it to be.
b. Gives jurors something physical to take back to the deliberation room (make
it real)
(11)
HEARSAY!!!
a. In general: AN OUT OF COURT STATEMENT IS NOT ADMISSIBLE TO
PROVE THE TRUTH OF THAT OUT OF COURT STATEMENT!!!
b. If its conduct (not words), were they trying to communicate something?
c. 801 Hearsay if:
i. Satisfies 801(a), (b), (c)
ii. AND doesnt fall under exemptions in 801(d)
d. 801(d)(1) Not hearsay if its a declarant-witness prior statement:
i. (a) prior inconsistent, sworn testimony;
ii. (b) consistent w/ prior testimony and offered:
1. to rebut express/implied charge that declarant recently
fabricated; or
2. to rehabilitate declarants credibility as a witness; OR
iii. (c) used for identification
e. 801(d)(2) Not hearsay if statement offered against opposing party and:
i. (a) made by party (to this suit) in an independent or representative
capacity;
ii. (b) one the party manifested that it adopted or believed to be true;
iii. (c) was made by a person whom party authorized to make statement
on the subject;

f.
g.
h.
i.

iv. (d) was made by the partys agent or employee on matter w/in the
scope of that relationship and while it exists; OR
v. (e) made by partys coconspirator during and in furtherance of the
conspiracy
803 Exceptions to hearsay whether or not declarant is available
804 Exceptions to hearsay when declarant is unavailable
807 Catch all for hearsay
805 Hearsay w/in hearsay.