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1. Is evidence relevant? (Does it have any tendency to make a fact more or less probable?

) (RULE 401)
- If item is conditionally relevant on a fact being proven, can judge make preliminary
determination that a jury has sufficient evidence to find that fact exists? (RULE 104(b))
- Even if it is relevant, is its probative value of substantially outweighed by unfair
prejudice/confusion/wasting of time? (RULE 403)
- Is evidence barred by any other FREs or by the constitution? (RULE 402)
2. Is evidence barred by one of the specialized relevance rules? (RULE 402)
- Is evidence of a subsequent remedial measure being used to show negligence? (RULE 407)
- Is evidence from a settlement/compromise negotiation being offered to prove or disprove the
validity or amount of a disputed claim or impeach by prior statement/contradiction? (RULE 408)
- Is evidence of offer to pay medical or related expenses being used to show liability? (RULE 409)
- Is evidence that a person had or didnt have liability insurance being offered to show that person
acted or didnt act wrongfully/negligently? (RULE 411)
- Is evidence of a nolo contendere or withdrawn guilty plea or statements made during these plea
discussions/proceedings being used against a defendant? (RULE 410)
3. Is evidence of character or a character trait being used to show that on a particular occasion a person
acted in accordance with that character or character trait? (RULE 404(a))
- If it is, is it being used
o By defendant to show that defendants pertinent character trait? (RULE 404(a)(2)(A))
o By defendant to show victims pertinent character trait? (RULE 404(a)(2)(B))
By prosecution to rebut Ds evidence of Ds or victims character? (RULE 404(a)
(2)(A) or (B))
o By prosecution in a homicide case to show victims pertinent character trait in order to
rebut evidence that victim was the first aggressor? (RULE 404(a)(2)(C))
RULE 404(a)(2) uses can only be proven with opinion/reputation (RULE 405(a))
- Or is it being used in a case of 1) sexual assault or 2) child molestation to show that D has
previously committed acts of 1) sexual assault or 2) child molestation (RULES 413, 414, 415)
- Or, is evidence of other crimes, wrongs, or acts being used to show something other than action in
accordance with character on a particular occasion? (RULE 404(b))
o Is it being used to prove motive, intent, opportunity, knowledge, skill, modus operandi?
o Not subject to reputation/opinion limit of Rule 405(a)
- Or, it if is being used to show habit or routine practice (RULE 406)
4. Is evidence being used to impeach or support a witness character for truthfulness?
- If it is, is it an
o Attack in the form of opinion or reputation during direct (RULE 608(a))
o Attack in the form of specific instances during cross (RULE 608(b))
o Support in the form of opinion or reputation or specific instances only after character has
been attacked (RULE 608(a)-(b))
o Attack in the form of specific instances of past criminal conduct (RULE 609)
5. Is evidence being used to prove a victims past sexual behavior or predisposition? (RULE 412)
- If it is, is it being used for a noncharacter reason to show consent/source of semen or injury or
would exclusion violate Ds constitution rights to a fair trial or complete defense? (RULE 412(b))
6. Is witness competent to testify? (RULE 601)
- If so, does the witness have personal knowledge of the matter in question? (RULE 602)

7. Is the evidence being offered hearsay (out of court statement being offered to prove the truth of what
the declarant intended to assert)? (RULES 801, 802)
- If so, does evidence fall into one of the hearsay exceptions/exclusions? (RULES 801, 803, 804)
o Was the hearsay statement made by an opposing party and that statement is now being
offered against that opposing party? (RULE 801(d)(2))
o Was the hearsay statement made by a declarant who is now testifying as a witness at
Is prior statement being used as evidence of a prior inconsistent statement to
impeach the witness and not being used substantively? (RULE 613)
Is prior hearsay statement being substantively to prove the truth of what it
asserts? (RULE 801(d)(1))
Evidence of prior inconsistent statement that declarant-witness made
under oath? (RULE 801(d)(1)(A))
Evidence of prior consistent statement to rebut claim declarant-witness
has recently fabricated testimony? (RULE 801(d)(1)(B))
Prior identification that declarant-witness made out of court? (RULE
o Is the declarant who made the statement unavailable? (RULE 804)
If so, does statement fall into one of the exceptions for an unavailable declarant?
(RULE 804(b))
Was prior statement by unavailable declarant made by declarant at a
hearing or trial where party evidence is being offered against had a
similar motive and opportunity to develop the testimony through cross
examination? (RULE 804(b)(1) Former Testimony)
Was prior statement so against the interests of the declarant that a
reasonable person would have only made the statement if it was in fact
true? (RULE 804(b)(3) Statement against Interest)
Was prior statement made by a declarant under belief they were faced
with imminent death and is being used in a civil case or homicide case?
(RULE 804(b)(2) Dying Declaration)
Was declarants unavailability at trial caused by the actions of the party
that declarants statement is being offered against? (RULE 804(b)(6)
Forfeiture by Wrongdoing)
o Does the declarants statement fall into exception making it admissible regardless of
whether declarant is unavailable? (RULE 803)
Was the declarants statement a present sense impression? (RULE 803(1))
Was the declarants statement an excited utterance? (RULE 803(2))
Was the declarants statement a statement of a then-existing mental, emotional, or
physical condition? (RULE 803(3))
Was the declarants statement made for, or pertinent to, obtaining medical
diagnosis or treatment? (RULE 803(5))
Was the witness statement a recorded recollection about matters that witness
could once recall, but no longer can, and were made or adopted by witness when
their memory was fresh and accurately reflects the witness knowledge? (RULE
803(5) Recorded Recollection)
Does the record actually refresh witness memory and allow them to
testify to the matter at trial? (RULE 612)
Is the statement a business record made near time of event by someone with
knowledge that was kept in course of regularly conducted activity of a business

and making the record is a regular practice of that conducted activity? (RULE
Is the statement a public record that sets out the public offices activities, matters
observed that official had legal duty to report, or in a civil case or against the
govt in a criminal case factual findings of a legally-authorized investigation?
(RULE 803(8))
o Does the declarants statement fall into the residual exception to hearsay as it has
equivalent circumstantial guarantees of trustworthiness, is offered as evidence of a
material fact, and is more probative on the point than any other available evidence?
(RULE 807)
If the statement involves hearsay within hearsay, does each component of the statement fall into
one of the exceptions/exclusions to the rule against hearsay? (RULE 805)

8. Does the evidence being offered violate a criminal defendants right to confront the witnesses against
- Is the evidence being offered against the defendant testimonial evidence that was made by a
declarant who is not at trial testifying against D?
o Or was the prior statement made with the purpose of being used at trial for prosecution
9. Is witness testimony in an admissible form? (RULES 701, 702, 703, 704, 705)
- Is lay witness testing in form of opinion to matter they have personal knowledge of, helpful to
allowing jury to understand an issue or determine a fact at issue, and not based on any specialized
knowledge? (RULE 701)
- Is expert testimony helpful to allowing jury to understand evidence or determine a fact at issue,
based on sufficient facts or data, and a product or reliable principles and methods that the expert
has reliably applied to principles and methods of the case? (RULE 702)
o Does testimony embraces an ultimate issue in a criminal trial that states an opinion on
whether D did or did not have a mental state or condition that constituted an element of
crime charged or a defense? (RULE 704)
o Does expert have a proper basis for their opinion testimony based on personal knowledge
or knowledge they acquired during trial or from a third party/documents outside of trial?
(RULE 703)
10. Did the proponent of the evidence offer evidence sufficient to support a finding that the evidence is in
fact what the proponent says it is? (RULE 901)
- Can the evidence be authenticated with a RULE 901 example, a combination of those examples,
or an independent rationale?
o Eg. Voice analysis, handwriting comparison, testimony of witness with knowledge,
ancient documents or data compilations, telephone conversation
o Is there a chain of custody issue?
- Is the evidence self-authenticating? (RULE 902)
o Eg. Sealed and signed domestic public documents, signed and certified domestic public
documents, newspapers and periodicals
- Is an original copy of a photo, writing, or recording required under the Best Evidence Rule?
(RULE 1002)
o Is a duplicate of an original admissible? (RULE 1003)
X. For all paths to admission, does the probative value of evidence substantially outweighed by unfair
prejudice/confusion? (RULE 403)

Exception of RULE 609(a)(2)