Evidence Final Exam Attack Checklist
Final exam attack checklist covering relevance, hearsay and its exceptions, character evidence, privileges, and expert testimony.
Pre-Exam Preparation
- Memorize the hearsay rule and all Federal Rules of Evidence Article VIII exceptions: Rule 803 (availability immaterial — present sense impression, excited utterance, state of mind, medical diagnosis, business records, public records), Rule 804 (declarant unavailable — former testimony, dying declaration, statement against interest, forfeiture by wrongdoing), Rule 807 (residual exception)
- Create a character evidence flowchart: FRE 404(a) general ban, 404(a)(2) mercy rule exceptions in criminal cases, 404(b) prior acts for MIMIC purposes, FRE 608/609 impeachment of witnesses
- Review the relevance rules: FRE 401 (tendency to make a fact more or less probable), FRE 403 (exclusion when probative value is substantially outweighed by unfair prejudice, confusion, or delay)
- Outline all privileges: attorney-client (confidential communication for legal advice), spousal testimonial (holder is witness-spouse in criminal case), spousal communications (confidential marital communications), and work product doctrine
- Map out expert testimony rules: FRE 702 (qualified expert, reliable principles and methods, sufficient facts, reliable application) and the Daubert reliability factors
- Review authentication (FRE 901) and best evidence rule (FRE 1002) requirements — frequently tested in evidence exams
Issue-Spotting Checklist
- Check relevance first: does the evidence have any tendency to make a fact of consequence more or less probable (FRE 401)?
- Apply FRE 403 balancing: even if relevant, should the evidence be excluded because its probative value is substantially outweighed by unfair prejudice?
- Identify all hearsay issues: is the statement an out-of-court statement offered for the truth of the matter asserted? Check for non-hearsay purposes (effect on listener, verbal acts, state of mind of speaker)
- Check for hearsay within hearsay (double hearsay): each layer must independently fall within an exception or exclusion
- Look for FRE 801(d) exclusions from hearsay: prior inconsistent statement (under oath at proceeding), prior consistent statement (to rebut charge of recent fabrication), statement of identification, and opposing party statements (individual, adoptive, authorized, agent, co-conspirator)
- Spot character evidence issues: is character evidence being offered to prove action in conformity (generally barred), or for another purpose under 404(b) (motive, intent, identity, modus operandi, common plan)?
- Check for impeachment opportunities: prior inconsistent statement (FRE 613), bias, specific instances of conduct (FRE 608(b)), prior convictions (FRE 609), character for untruthfulness (FRE 608(a))
- Identify privilege issues: attorney-client, spousal, physician-patient, and determine whether any exception or waiver applies
- Look for expert testimony issues: is the witness qualified, and does the testimony satisfy Daubert reliability requirements?
- Check for the best evidence rule (FRE 1002): when the content of a writing, recording, or photograph is at issue, the original is required unless an exception applies
Common Essay Structure (IRAC)
- Issue: Identify the evidentiary question (e.g., 'Whether W's statement to the police officer is admissible hearsay under the excited utterance exception')
- Rule: State the specific Federal Rule of Evidence with its requirements (e.g., 'Under FRE 803(2), an excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement')
- Application: Apply each requirement of the rule to the specific facts — for hearsay exceptions, address the foundational elements one by one
- Objections and responses: Address likely objections (hearsay, relevance, unfair prejudice) and the proponent's response (applicable exception, limiting instruction)
- Limiting instructions: Note when a limiting instruction under FRE 105 would be appropriate (e.g., prior acts evidence admitted for MIMIC purpose but not propensity)
- Conclusion: State whether the evidence is admissible and under what conditions or limitations
Key Rules to Memorize
- FRE 401: evidence is relevant if it has any tendency to make a fact of consequence more or less probable — very low threshold
- FRE 403: relevant evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
- Hearsay (FRE 801(c)): an out-of-court statement offered to prove the truth of the matter asserted — if offered for a non-truth purpose (e.g., effect on listener, legally operative words), it is not hearsay
- Opposing party statement (FRE 801(d)(2)): not hearsay — includes individual, adoptive, authorized, agent (within scope of employment), and co-conspirator statements (during and in furtherance of conspiracy)
- Present sense impression (FRE 803(1)): statement describing an event made while or immediately after perceiving it
- Excited utterance (FRE 803(2)): statement relating to a startling event made while under the stress of excitement — no strict time limit
- Business records (FRE 803(6)): record made at or near the time, by a person with knowledge, kept in the course of a regularly conducted activity, as a regular practice — must be established by a qualified witness or certification
- FRE 404(b): prior bad acts are inadmissible to prove character/propensity but admissible for MIMIC purposes: motive, intent, absence of mistake, identity, common plan or scheme
- FRE 609: prior convictions admissible for impeachment — crimes of dishonesty (automatic), felonies (probative value vs. prejudicial effect balancing, with higher standard for criminal defendants)
- Attorney-client privilege: confidential communication between attorney and client for the purpose of seeking or providing legal advice — survives death of client; waived by disclosure to third parties
- FRE 702 (Daubert): expert testimony must be based on sufficient facts, reliable principles and methods, and reliable application — judge serves as gatekeeper
- Confrontation Clause (Crawford): in criminal cases, testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine
Last-Minute Tips
- For every piece of evidence, run through this sequence: (1) relevance, (2) hearsay analysis, (3) character evidence rules, (4) privilege, (5) FRE 403 balancing — this catches most issues
- Don't forget non-hearsay purposes: a statement offered to show the listener's state of mind, to prove notice, or as a verbal act (e.g., words of contract, defamatory statement) is not hearsay
- Remember that FRE 803 exceptions apply regardless of declarant's availability, while FRE 804 exceptions require the declarant to be unavailable
- In criminal cases, always consider the Confrontation Clause (Crawford v. Washington) for any hearsay statement — even if a hearsay exception applies, the Sixth Amendment may bar admission of testimonial statements
- When in doubt about an FRE 404(b) purpose, list all plausible MIMIC purposes — professors reward thorough analysis even if some purposes are weaker than others
Time Management
- Evidence essays often present a trial transcript or series of objections — address each evidentiary issue in the order it arises rather than reorganizing by topic
- For hearsay questions, invest time in identifying the correct exception and applying its foundational elements — conclusory analysis ('this is an excited utterance') earns minimal credit
- Budget time for FRE 403 balancing on every key piece of evidence — it is a universal fallback that professors expect you to address
- If the exam includes an expert witness question, make sure to address both qualification and Daubert reliability — these are frequently tested together