Evidence Analysis Rules and Steps

Big Picture Checklist

(1) Relevance
(2) Evidentiary Hurdles
(3) 403 Balancing

Evidentiary Hurdles List

Relevance (Police, Similar Happenings)
Character Evidence
Impeachment
Best Evidence/Authentication
Hearsay
Expert Testimony
Privileges

Document v. Live Testimony (Document sided)

Best Evidence Rules
Authentication
Hearsay
Confrontation Clause (If Criminal)

Document v. Live Testimony (Lay Witness)

Analyze 602/701 (Personal Knowledge, Speculating, Testifying to science, tech)

Document v. Live Testimony (Expert Witness)

702, 703, 704 (if criminal)

Relevancy (401/402)

1) What fact is evidence offer to prove
2) Fact probable in case under applicable law
3) Does evidence help establish that fact?

Hearsay (3-part Test)

1) Out of Court Statement?
2) What did declarant intend to assert?
3) Is truth of the matter asserted?

Broad Hearsay Exceptions (3 categories)

801: not hearsay b/c can be CX in court
803: Exceptions because reliability reasons
804: Exceptions because declarant is unavailable as witness

804(a) Declarant unavailable if

(a) Privilege
(b) refuses to testify
(c) does not remember
(d) dead/illness

Confrontation Clause

(1) against D in Criminal Case
(2) for the TMA (hearsay)

Crawford Rules

(1) No testimonial unless:
(a) D can CX declarant; OR
(b) Dt is unavailable & D had prior opportunity to CX Dt regarding testimonial statement

(2) (Testimonial Statement?) Look at primary purpose:
(a) (No CC protections) emergency
(b) (CC protections) gather information for prosecution

404(a) Character Rule (3 categories) [exceptions only in Criminal Case]

(1) Reputation (2) Opinion (3) Specific Acts.

404(b) Other Purpose (MOPPKIIAL)

Evidence may be admitted for other purpose

405 Method of Proving Character using Reputation/Opinion

(1) allowed when evidence of a person’s character or character trait is admissible; OR

(2) When character is an ESSENTIAL ELEMENT (ie. proving libel)

Character Evidence

(i) 404
(ii) 406
(iii) Exclusions for policy (407, 408, 409, 410, 411)
(iv) Sex Crimes

803(1) Present sense impression

describe current situation

803(2) Excited utterance

startling event but people still lie

803(3) State of mind

one’s feeling

803(4) Medical Diagnosis

Must be for diagnosis or treatment

803(5) Recorded recollection

witness cannot recall

803(6) Business Record Exception & 803(7) records of a regularly conducted activity

regular practice of business

803(8), (10)

Public records does(n’t) exist

803(16) Ancient documents

prior to 1998 and authentic

803(18) Statements in learned treatises, periodicals, or pamphlets

brought to expert in CX or relied in direct

Expert Testimony

i. 701
ii. 702
iii. 703

702 Qualified expert by:

knowledge, skill, experience, training