401

Test for Relevant Evidence 

• fact +/- probable than without evidence
• material fact 

402

General Admissibility of Relevant Evidence

• admissible unless U.S. Constitution, Fed. R. Evidence, federal statute, or rules from Sup. Ct. say otherwise
• irrelevant evidence not admissible

403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

• probative value substantially outweighed by
• unfair prejdice
• confusing issues
• misleading jury
• undue delay
• wasting time
• cumulative evidence 
• consider evidentiary alternatives (limiting instruction, redacting record) 

404(a)

Character Evidence

• evidence of person character/trait not admissible prove person acted in accordance with trait
• criminal case
• defendant may offer evidence of pertinent trait
• homicide case
• prosecutor may offer evidence of victim's trait of pecaefulness to rebut evidence of first aggressor

404(b) 

Crimes or Other Acts

• evidence crime, wrong, other act not admissible to prove person's character to show on ocassion acted in accordance
• may be admissible for another purpose (prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack accident) 
• prosecutor must provide reasonable notice before trial 

104(a) 

Preliminary Question 

• court must decide preliminary question about "whether witness qualified", "privilege exists", or "evidence admissible" 
• not bound by evidence rules (except on privilege) 

801

Definitions That Apply to Hearsay 

• statement: oral or written assertion, nonverbal conduct intended as assertion.
• declarant: person who made statemnet. 
• hearsay: statement 1) declarant makes out of current trial or hearing, and 2) offered to prove truth of matter asserted in statement. 

802

Rule Against Hearsay

• not admissible unless federal statute, Fed. R. Evidence, or other rules prescribed by Sup. Ct. say otherwise 

• perception 
• ambiguity
• insincerity
• memory 

• circumstantial evidence state of mind
• effect on listener
• knowledge/notice
• words of independent legal significance (donative intent, wedding vows, contract, false words under oath, slander/libel (defamation)) 

• hearsay rule not applicable to witness on stand and subject to cross-examination, observed, through own senses or use of scientific instruments
• conclusions based on hearsay not admissible
• silence is not statement, unless circumstances make silence equivalent of verbal statement/situation
• suicide is equivalent of assertion someone committed murder
• implied assertions are not hearsay (utterances of absent declarants not offered for truth of words) 

Hearsay Exceptions: 

Whether or Not Declarant is Available

803(1)

Present Sense Impression 

• statement
• describing or explaining event or condition
• made while or immediately after declarant perceived it

Hearsay Exception: 

Whether or Not Declarant Available

803(2)

Excited Utterance

• statement
• relating to startling event or condition
• made while declarant under stress of excitement that caused it 

Hearsay Exception:

Whether or Not Declarant Available 

803(3) 

Then-Existing Mental, Emotional, or Physical Condition (State of Mind) 

• statement 
• by declarant
• then-existing state-of-mind (motive, intent, plan) or
• emotional, sensory, or physical condition (mental feeling, pain, or bodily health) 

• hearsay evidence admissible if bears on then-existing state-of-mind
• must be forward-looking 
• can introduce statemnet of intention to show declarant acted with conformity of intention 

• used inferentially to prove other matters at issue
• when performance of act of individual is issue, his intention to perform act may be shown
• trier of fact can infer that person carried out his intention and perform act from intention 

Hearsay Exception: 
Whether or Not Declarant Available

803(4)

Statement Made for Medical Diagnosis or Treatment  

• statement
• made for and is reasonably pertinent to medical diagnosis or treatment
• describes medical history (past/present symptoms or sensations, inception, general cause) 
• can be made in response to physicians questions
• to anyone associated with providing medical services (ambulance, nurse, family) 
• by parent on behalf of child 
• Two-part test: 
• motive consistent with getting treatment
• statement reasonably relied on by physicians in providing treatment/diagnosis 

Hearsay Exception: 

Whether Declarant Available or Not

803(5) 

Past Recollection Recorded

• record
• matter witness knew about but cannot recall to testify fully and accurately
• made/adopted by witness when fresh in memory
• accurately reflects witness knowledge
• record may be read in evidence, but not received as exhibit 

Hearsay Exception: 

Whether Declarant Available or Not

Present Recollection Refreshed 

• does not have to be: 
• made immediately after event
• first-hand knowledge
• vouched by witness for fact it was accurate when made
• in writing
• testimonial competence
• separately admitted into evidence
• may be: 
• memo by another person
• any aid to cause witness to be able to recall 

Hearsay Exception: 

Whether Declarant Available or Not

803(6) 

Business Records 

• record
• act, condition, diagnosis, event, opinion
• made at or near time or from information transmitted by someone with knowledge
• kept in course of regularly conducted activity of business, organization, occupation, calling
• record regular practice of activity
• conditions shown by testimony of custodian or another qualified witness
• source nor method indicate lack trustworthiness 

Hearsay Exception: 

Whether Declarant Available or Not

803(7) 

Absence of Record

• admitted to prove matter did not occur/exist
• record regularly kept for matter
• source nor circumstances indicate lack trustworthiness

Hearsay Exception: 

Whether or Not Declarant is Available

803(8)

Public Records

• record/statement ofpublic office
• offices activities
• matter observed while under legal duty to report
• source/circumstances indicate lack trustworthiness 

Hearsay Exception: 

Whether or Not Declarant Available

803(10)

Absence of Public Record 

• testimony diligent search failed to disclose to prove: 
• record/statement does not exist
• matter did not occur/exist if regularly kept of that kind 

Hearsay Exception: 

Whether or Not Declarant Available 

803(18)

Statements in Learned Treatises, Periodicals, or Pamphlets 

• statement
• in pamphlet, periodical, or treatise
• called to attention of expert witness on cross or relied on by expert on direct
• called to attention of expert witness on cross or relied on direct
• publication established as reliable authority by expert admission or testimony or judicial notice 
• may be read into evidence, but not an exhibit 

Hearsay Exception: 

Whether or Not Declarant Available

803(22) 

Judgment of Previous Conviction 

• final judgment conviction
• judgment entered after trial/guilty plea (not nolo contendere plea)
• conviction for felony (death/1+ year imprisonment) 
• admitted to prove material fact of judgment 
• judgment against defendant when offered in criminal case for urpsoe other than impeachment 
• pendency of appeal may be shown, does not affect admissibile though 

Hearsay Exception: 

Declarant Unavailable 

804(a) 

Criteria for Being Unavailable

• privilege
• court order but declarant refuses to testify on subject matter
• testifies does not remember
• death or then-existing infirmity 
• absent trial/hearing, proponent not able to procure declarant's attendance through hearsay exception 
• does not apply if statement's proponent procured or wrongfully caused declarant's unavailability 

Hearsay Exception: 

Declarant Unavailable 

804(b)(1)

Former Testimony 

• testimony
• given as witness at trial, hearing, lawful deposition (current/past proceeding) 
• not offered against party who had opportunity and similar motive to develop it by direct, cross, or redirect examination 
• testimony from criminal case can be introduced in subsequent civil case where appears that it is impossible to obtain testimony of witness who testified in criminal case