Evidence Big Picture Outline

The overriding question you ask yourself when approaching any evidence question is:


Evidence is a unique subject, where the question essentially asks the student to follow a piece of evidence through a chain of potential “hurdles” that will deem it admissible or inadmissible.


RELEVANCE Any fact that is of consequence—does it make the proposition more probable with it than it would without the information?

1. Relevant, but…

  • Liability Insurance is never admissible on the issue of whether the party acted negligently or otherwise wrongfully, but can be brought in for other purposes such as ownership, control, agency, bias or prejudice.


  • Subsequent Remedial Measures is not allowed into evidence when offered to show that the party was negligent, or was conscious of being at fault, but can be showed for other purposes, such as ownership, control, or feasibility of precautionary measures.

COMPETENCY →Does the witness have the ability to perceive, understand, remember, and communicate the event?

1. Does the witness have first-hand knowledge, or is the witness speculating instead?

2. Does the witness have any special problems, i.e., infancy or insanity that would impair their understanding of the event?

3. Does the witness have firsthand knowledge of the subject matter of his testimony, or is it mere speculation? If a witness’ only knowledge comes from someone else, he is incompetent to testify.

4. Are there any privileges that exist that should preclude the testimony? Attorney/client; Priest/Penitent; Doctor/patient; Marital Privilege and the like.

5. Character Evidence: Evidence of a person’s character or a trait of character is generally not admissible to prove that he acted in conformity there with on a particular occasion EXCEPT:

  • When character is an essential element of the case
  •  Proof of other relevant factor(s):
    •  MIMIC– motive, intent, lack of mistake, identity, Common Plan or Scheme
    • Evidence offered by the criminal defendant that he has a pertinent trait or character by reputation or opinion evidence
    • Character of victim: criminal defendant may put on evidence of a relevant character trait of the victim, however this is limited in sexual assault cases
    • Sexual Offenders are a different breed according to the FRE, and propensity evidence is allowed.
    • Habit and Custom is admissible of a person or of the routine practice of an organization regardless of the presence of an eyewitness as it is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice

CREDIBILITY → We also ask whether or not the witness is a credible witness. Challenging a witness’s credibility can be done through impeachment and attacking the witness’s character. Always ask yourself whether or not character evidence is being offered for impeachment or for substantive reasons.

1. Common Impeachment Techniques


  • Bad Reputation for Truth: by opinion or reputation evidence only (A record of arrest cannot be used to impeach a witness → inquiry only.
  • Bias-Extrinsic evidence: Evidence of bias may be proven by extrinsic evidence. i.e. The witness was recently fired from a job for stealing. This is admissible to show that the Witness may be biased against his boss. Thus the witness may be impeached by using extrinsic evidence of his bias.
  • Bad Act: specific instances of conduct other than the conviction of a crime may NOT be proven by extrinsic evidence. They must however be probative of truthfulness or untruthfulness that may be inquired onto Cross. However, if the opposing side has a good faith basis for believing that the W has committed a bad act which is probative of truthfulness, the W may be questioned about it. The attorney must then accept the answer of the witness, no further outside evidence is permitted.
  • Prior Conviction of Crimes: must have either been punishable by death or imprisonment >1 year or involve dishonesty or false statement; no juvenile; not more than 10 years has lapsed. Extrinsic evidence allowed.
  • Prior inconsistent statement: (Must ask whether it is coming in for impeachment only or whether it is coming it both for impeachment and the truth).

FOUNDATION → A proper basis for admission of the testimony. The evidence must be authenticated and a basis established that shows it is reliable.

1. Expert testimony needs a foundation showing the expert has sufficient education, training, background, experience.

2. Photographs must depict what they purport to depict. Also keep in mind chain of custody concerns.

3. Best Evidence rule regarding proving the contents of a writing, recording or other document and the accuracy of electronic records. Remember, the contents of the writing must be in issue and this analysis always comes before a hearsay analysis when dealing with a recording.

HEARSAY → Any out of court statement offered truth of the matter asserted therein except a party’s own statement offered against that party.

Always determine whether or not a statement is Not hearsay (i.e. not offered for its truth), Non-hearsay (offered for its truth but defined under the FRE as non-hearsay), or is hearsay but falls within an exception.

Ask yourself this: Does the jury have to believe or disbelieve the declarant? If yes, then the statement is going to the truth of the matter asserted.

A Visual: Dec → Witness → Judge/Jury

Unavailability Exceptions

Declarant Must Be Unavailable

1. Former Testimony
2. Declaration Against Interest (penal or pecuniary)
3. Dying Declaration
4. Statement of Family History
5. Forfeiture by Flight of a Witness

Spontaneous Exceptions

Declarant’s Availability Does Not Matter

1. Present Physical Condition
2. Present Mental State
3. Statement For Treatment or Diagnosis
4. Excited Utterance
5. Present Sense Impression

Records Exceptions

1. Past Recollection Recorded
2. Business Records
3. Public Records
4. Records of Vital Statistics
5. Documents Concerning Land
6. Judgments of Criminal Convictions

F.R.E. 801 Defines The Following as non-hearsay:

“A party’s own statement offered against that party.”

This covers a broad array of material including: (ADMISSION)

  •  His own statement or one which he believes to be true.
  • Agent’s statement including someone authorized to speak, a servant’s statement concerning something within scope of employment made while so employed and a co-conspirator’s statement made in course of or in furtherance of the conspiracy.

Prior statement of a witness who testifies at the present trial and the statement is:

  • Inconsistent with present testimony and prior statement was under oath in some judicial proceeding (This is where a statement can come in both to impeach and for its truth)
  • Consistent with present testimony and is offered to rebut charge of recent fabrication, improper influence or motive;
  • One of identification made after perceiving him.
Admissions, but not really…

Settlements and Plea Bargains

1. Settlements: the fact that a party has offered to settle a claim may not be admitted on the issue of the claim’s validity or amount (i.e. cannot be brought in as an admission). This applied only if the claim is one that is disputed as to the validity or amount. In addition, collateral admissions of fact will be excluded.

2. Offers to Plead Guilty: if a D offered to plead guilty to a crime where no actual guilty plea ever resulted, this may not come in to show that D is guilty or is conscious of his guilt (i.e. cannot be brought in as an admission). Any other statements made in the course of the plea discussions will also be excluded.

3. Offers to Pay Medical Expenses: offers to pay medical or hospital or similar expenses occasioned by an injury are not admissible to prove liability for the injury (i.e. cannot come in as an admission), but collateral admissions of fact will be able to come in.

RULE 403 PROBLEMS → Authorizes the exclusion of relevant evidence on grounds of prejudice, confusion or waste of time. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion and delay?


1. The Sixth Amendment of the Constitution gives defendants the right to confront witnesses against them.

2. The use of an out-of-court statement by the prosecutor violates a defendant’s Sixth Amendment rights, even if the statement falls within a hearsay exception, if:

  • the statement was “testimonial,”
  • the witness who made the statement is unavailable to testify at trial, and
  • the defendant has not had an opportunity to cross-examine the witness before trial.

3. Statements made to police officers in the course of an interrogation are often testimonial. Additionally, statements that a witness reasonably believed would be used as part of a criminal prosecution are testimonial.

4. There is a distinction between:

  • statements made to the police to assist in the investigation and prosecution, which should be considered testimonial; and
  • statements made to the police to enable them to meet an ongoing emergency, which should be considered nontestimonial.

5. Courts look to the “primary purpose” of the interrogation to determine if a statement is testimonial or non-testimonial.


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