Evidence Mnemonics & Memory Aids

Six frequently tested hearsay exceptions under FRE 803 where the declarant's availability does not matter. These are the most commonly tested exceptions.

• Habit — evidence of a person's habit or an organization's routine practice (FRE 406)
• Excited utterance — statement relating to a startling event made under stress of excitement (FRE 803(2))
• Medical diagnosis — statements made for purposes of medical diagnosis or treatment (FRE 803(4))
• Present sense impression — statement describing an event made while or immediately after perceiving it (FRE 803(1))
• Business records — records of a regularly conducted business activity, made at or near the time by someone with knowledge (FRE 803(6))
• Dying declaration — statement by a declarant who believes death is imminent, concerning the cause or circumstances of death (FRE 804(b)(2) — actually requires unavailability, but commonly grouped here for testing)

Character evidence is generally inadmissible to prove action in conformity therewith (propensity). However, FRE 404(b)(2) allows other-acts evidence for these non-propensity purposes.

• Motive — evidence of other acts showing why the defendant committed the crime
• Intent — proving the defendant's intent or state of mind
• absence of Mistake — showing the act was not accidental or inadvertent
• Identity — proving identity through a signature modus operandi (distinctive pattern)
• Common plan or scheme — showing a larger plan of which the charged act is a part

After Crawford v. Washington, the Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

• Testimonial statements — the key threshold question (affidavits, prior testimony, formal police interrogations)
• Introduced by prosecution — the Confrontation Clause only restricts the prosecution's evidence
• Prior opportunity to cross-examine must have existed
• Out-of-court declarant — the statement was made outside the current trial
• Face the accused — Sixth Amendment right to confront witnesses
• Formalized statements to government officials are generally testimonial (Davis v. Washington primary purpose test)

Even relevant evidence may be excluded under FRE 403 if its probative value is substantially outweighed by countervailing dangers. Note: the standard favors admission — substantially outweighed.

• Probative value of the evidence
• Substantially outweighed by the danger of:
• Unfair prejudice
• Confusion of the issues
• Misleading the jury
• Undue delay, wasting time, or needlessly presenting cumulative evidence

Step-by-step approach for analyzing whether an out-of-court statement is hearsay and whether an exception applies.

• Statement — was there an out-of-court statement (oral, written, or assertive conduct)?
• Offered for truth — is the statement offered to prove the truth of the matter asserted? If not (e.g., verbal act, effect on listener, notice), it is not hearsay
• Declarant — who made the statement? A party-opponent admission is excluded from the hearsay definition entirely (FRE 801(d)(2))
• Defined exception — does an FRE 803 or 804 exception apply?
• If no exception, consider the residual exception (FRE 807)

The five main methods of impeaching a witness's credibility. Any party may impeach any witness, including their own (FRE 607).

• Bias — showing the witness has a reason to favor one side (not covered by a specific FRE but always admissible)
• Inconsistent statements — prior statements inconsistent with trial testimony (FRE 613)
• Character for untruthfulness — reputation or opinion testimony about the witness's character for dishonesty (FRE 608(a))
• Conviction of crime — felonies or crimes involving dishonesty (FRE 609)
• Sensory deficiency — inability to perceive, remember, or relate events accurately

The most commonly tested privileges in evidence. Privileges are strictly construed because they exclude relevant evidence.

• Spousal privileges — testimonial (bars testimony against a spouse in criminal cases) and communications (confidential marital communications)
• Psychotherapist-patient — protects confidential communications made for treatment (Jaffee v. Redmond)
• Attorney-client — confidential communications between client and lawyer for purpose of obtaining legal advice
• Medical records — while not a privilege per se in all jurisdictions, physician-patient privilege exists in many states (not in federal common law per Jaffee)

Evidence must be authenticated before it can be admitted. Authentication requires sufficient evidence to support a finding that the item is what the proponent claims it to be.

• Distinctive characteristics — appearance, contents, substance (FRE 901(b)(4))
• Admission by the party — a party can authenticate evidence by acknowledging it
• Witness with knowledge — testimony of someone who can identify the item (FRE 901(b)(1))
• Non-expert handwriting comparison and expert analysis (FRE 901(b)(2)-(3))

When the contents of a writing, recording, or photograph are at issue, the original is generally required. But many exceptions apply.

• Best (original) evidence required to prove the contents of a writing, recording, or photograph
• Original is required — but duplicates are generally admissible unless authenticity is genuinely questioned (FRE 1003)
• Written contents must be at issue — the rule does not apply when a witness testifies to facts they independently observed
• Lost or destroyed originals — secondary evidence is admissible if the original was lost or destroyed in good faith (FRE 1004)

Non-expert witnesses may offer opinion testimony if it meets these requirements under FRE 701.

• Helpful to the jury in understanding the testimony or determining a fact in issue
• Experience-based — rationally based on the witness's own perception
• Lay witness, not based on scientific, technical, or specialized knowledge (which requires expert qualification under FRE 702)
• Personal knowledge — the witness must have firsthand knowledge of the facts underlying the opinion

After Daubert v. Merrell Dow and as codified in FRE 702, expert testimony must satisfy these requirements for admissibility.

• Knowledge — the expert's specialized knowledge must assist the trier of fact
• Reliable methodology — testimony must be based on sufficient facts or data and reliable principles and methods
• Applied reliably — the expert must have reliably applied the principles and methods to the facts of the case
• Fit — the testimony must be relevant to the issues in the case (the 'fit' requirement)
• Testable — whether the theory or technique can be and has been tested (Daubert factor)