Evidence — Bar One-Sheet (Elements & Mnemonics)

EVIDENCE — BAR ONE-SHEET (ELEMENTS & MNEMONICS)

Lean issue-spotting checklist — elements and mnemonics only. Pair with the full Evidence Master Outline for depth, then drill questions at MBEMax.

KEY PRINCIPLE #1 — RELEVANCE

• FRE 401: relevant = any tendency to make material fact more/less probable.
• FRE 403: exclude if probative value substantially outweighed by unfair prejudice, confusion, misleading, delay, cumulative.
• Public-policy exclusions: subsequent remedial measures · settlement offers/statements · plea negotiations · payment of medical expenses · liability insurance. (Admissible for other purposes — e.g., bias, ownership, impeachment.)

KEY PRINCIPLE #2 — CHARACTER & PRIOR ACTS

CIVIL: character inadmissible to prove conduct (except when character is essential element — defamation, negligent entrustment, child custody).

CRIMINAL: prosecution can't initiate; D may "open door" (reputation/opinion of pertinent trait) → prosecution rebuts. Victim's character (self-defense) opens D's same trait.

FRE 404(b) — OTHER CRIMES/ACTS — mnemonic "MIMIC": Motive · Intent · Mistake (absence of) · Identity · Common plan/scheme. (NOT to show propensity. Notice + sufficient proof.)

• FRE 413-415: sexual assault/child molestation — prior acts admissible for propensity.
• HABIT (FRE 406): specific + routine response → admissible to prove conduct.

KEY PRINCIPLE #3 — IMPEACHMENT

• Prior inconsistent statement (extrinsic w/ opportunity to explain; substantive if under oath).
• Bias/interest (extrinsic allowed).
• Prior convictions (FRE 609): any crime of dishonesty/false statement (auto, no balancing) · felony (403 balance; if witness is D → probative must outweigh prejudice); 10-year limit.
• Prior bad acts (FRE 608(b)): probative of truthfulness — inquiry only, no extrinsic.
• Reputation/opinion for untruthfulness (608(a)).
• Sensory defects · contradiction.
• Rehabilitation: good character for truthfulness after attack; prior consistent statement (rebut recent fabrication).

KEY PRINCIPLE #4 — HEARSAY DEFINITION & NON-HEARSAY

HEARSAY = out-of-court statement offered for truth of matter asserted. (Not hearsay if offered for effect on listener, notice, state of mind, verbal act/legally operative words, impeachment.)

EXEMPTIONS (FRE 801(d) — "not hearsay"):

• Prior statements of testifying witness: inconsistent under oath · consistent (rebut fabrication / rehabilitate) · prior identification.
• OPPOSING PARTY STATEMENTS: party's own · adoptive · authorized · agent/employee (scope) · co-conspirator (during + furtherance).

KEY PRINCIPLE #5 — HEARSAY EXCEPTIONS (declarant availability)

UNAVAILABILITY REQUIRED (FRE 804) — mnemonic "FRIDD":

• Former testimony (same/predecessor party had opportunity + similar motive).
• R = statement against interest (pecuniary/penal; corroboration if exculpatory).
• I = dying declaration (homicide/civil; belief death imminent; about cause/circumstances).
• Declaration of personal/family history.
• Declarant forfeiture by wrongdoing.

AVAILABILITY IMMATERIAL (FRE 803):

• Present sense impression (describing event while/immediately after).
• Excited utterance (startling event + under stress).
• Then-existing mental/emotional/physical state (not memory of past).
• Statement for medical diagnosis/treatment (incl. cause; not fault).
• Recorded recollection (read in, not admit as exhibit).
• Business records (regular activity + at/near time + by knowledgeable person + custodian; no litigation purpose).
• Public records (activities/legal duty; not police observations vs criminal D).
• Learned treatises · records of vital stats/absence · reputation.
• Residual (807): trustworthiness + necessity + notice.

KEY PRINCIPLE #6 — CONFRONTATION CLAUSE & DOUBLE HEARSAY

• CONFRONTATION (Crawford): criminal case + testimonial statement (primary purpose to prove past facts; NOT ongoing emergency) + declarant unavailable + no prior cross → barred.
• Double hearsay (805): each layer needs an exception/exemption.

KEY PRINCIPLE #7 — PRIVILEGES, WITNESSES & WRITINGS

• PRIVILEGES: attorney-client (legal advice; survives death; crime-fraud exception) · spousal (testimonial — criminal, holder is witness-spouse; confidential marital communications) · psychotherapist · clergy · physician (state).
• COMPETENCY: personal knowledge + oath; judge/juror can't testify.
• LAY OPINION: rationally based on perception, helpful, not specialized.
• EXPERT (FRE 702 — Daubert): qualified + reliable principles/methods + reliably applied + helpful; bases need not be admissible.
• BEST EVIDENCE RULE (1002): prove contents of writing/recording/photo → original (or duplicate). Excuses: lost, destroyed (not bad faith), opponent's possession, collateral.
• AUTHENTICATION (901): evidence sufficient to support finding it is what proponent claims; self-authenticating (902).

KEY PRINCIPLE #8 — PRESENTATION, JUDICIAL NOTICE & BURDENS

• JUDICIAL NOTICE (201): adjudicative facts — generally known in jurisdiction OR accurately/readily verifiable. Civil = conclusive; criminal = jury may but need not accept.
• PRESUMPTIONS (civil): bursting bubble — shifts burden of production, not persuasion; rebutted presumption disappea

  ADDITIONAL HIGH-YIELD POINTS

  Conditional relevance (FRE 104(b)). When relevance depends on a fact (e.g., authorship), the judge admits it if a reasonable jury could find the fact by a preponderance; the jury ultimately decides. Contrast 104(a): judge alone decides admissibility/privilege.

  Rule of completeness (FRE 106). When a party introduces part of a writing/recording, the adverse party may immediately require introduction of any other part that in fairness ought to be considered contemporaneously.

  Limiting instructions (FRE 105). When evidence is admissible for one purpose but not another, the court restricts it to its proper scope on request — key for 404(b), prior inconsistent statements, and policy-exclusion evidence offered for bias/ownership.

  Character methods (FRE 405). Proof of character is by reputation or opinion; specific instances of conduct are allowed only on cross-examination or when character is an essential element of a claim/defense.

  Refreshing recollection (FRE 612) vs. recorded recollection (803(5)). Present refreshed: witness reads anything to jog memory, then testifies from memory (the writing is not evidence; adversary may inspect it). Recorded recollection: witness once knew but now can't recall, the record was made when fresh — it is read into evidence, not admitted as an exhibit.

  Form of examination (FRE 611). Leading questions are improper on direct but permitted on cross, for hostile/adverse witnesses, and for preliminary matters. Cross-examination is generally limited to the scope of direct plus credibility.

  Not statements (no hearsay). Machine-generated readouts (radar, thermometers, GPS) and animal "statements" are not hearsay because there is no human declarant — they raise authentication issues, not hearsay ones.

  Bruton problem. In a joint criminal trial, a non-testifying codefendant's confession that names the defendant violates the Confrontation Clause; a limiting instruction is insufficient (remedies: redaction, severance, or no admission).

  Prior consistent statement (substantive). Under FRE 801(d)(1)(B) it is non-hearsay (substantive) when offered to rebut a charge of recent fabrication/improper motive, or to rehabilitate after another attack — not merely to bolster.

  Witness's personal knowledge (FRE 602). A lay witness may testify only to matters of which they have personal knowledge; this is a foundational requirement distinct from competency and opinion rules.

  Authentication shortcuts (FRE 901(b)). Common methods: distinctive characteristics, voice identification, reply-letter doctrine, the telephone-directory/business-call rule, and the process/system method (for printouts and recordings).

  Self-authenticating documents (FRE 902). No extrinsic foundation needed for public documents under seal, certified copies of public/business records, official publications, newspapers, trade inscriptions, and acknowledged (notarized) documents.

  Summaries (FRE 1006). Voluminous writings/recordings may be presented through a chart or summary if the originals are made available to the other party; underlying records need not all be admitted.

  Best-evidence triggers. The rule applies only when (a) proving the contents of a writing or (b) the knowledge derives from the writing itself; it does not apply where a witness has independent firsthand knowledge of the underlying event.

  Crime-fraud exception. The attorney-client privilege and work-product protection do not cover communications made to enable or further a future or ongoing crime or fraud.

  Spousal privileges distinguished. Testimonial privilege: criminal cases only, held by the witness-spouse, covers all testimony, ends at divorce. Confidential marital communications: civil or criminal, either spouse holds, covers communications made during a valid marriage, survives divorce.

  ★ ONE-LINE ATTACK ORDER

  Relevance (401/403) → competency/form → character & other acts (404/405; MIMIC) → impeachment → HEARSAY (definition → 801(d) exclusions → 803/804 exceptions) → Confrontation Clause → privileges → authentication & best evidence.