BAR EXAM: FEDERAL RULES OF EVIDENCE OUTLINE

EVIDENCE is relevant if it has any tendency to make a material fact more or less probable.
RELEVANT EVIDENCE is generally admissible unless (1) some exclusionary rule is applicable (hearsay) or
(2) a trial judge, who has broad discretion to exclude relevant evidence, finds that the evidences probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the
jury, undue delay, waste of time, or needless presentation of cumulative evidence.
JUDICIAL NOTICE allows a party to prove a fact by the courts recognizing that the fact is a matter of
common knowledge within the jurisdiction or is able to be quickly determined by resorting to sources whose
accuracy cannot reasonably be questioned. Judicial notice has the same effect as more formal evidence. In
civil cases, a fact judicially noticed is conclusively established, and binding on the jury. In criminal cases, a
judicially noticed fact is not binding on the jury; the jury is permitted to find facts that have been judicially
noticed, but not required to do so.
WITNESSES everyone is competent to be a witnessbut they may only testify about facts within their
personal knowledge and must demonstrate a willingness to tell the truth. Any party, including the party who
called the witness, may attack the credibility of a witness.
WRITTEN STATEMENTS witnesses may not read from prepared memorandum and must testify on basis of
current recollection. Written statements or any other item may be used to refresh the memory of a witness.
The adverse party has the right to inspect the document or item and use it on cross-examinationthey may
also introduce item into evidence.
LEADING QUESTIONS are generally not allowed on direct examinationallowed with some exceptions;
leading questions are generally allowed on cross examination.
LAY OPINION is admissible only if limited to inferences based on witnesses' own perception and if helpful
in explaining witness story.
EXPERT OPINION is admissible only after the expert is qualified as such through education and/or
experience. An expert opinion must be relevant to the issue at hand and sufficiently reliable. An expert need
not have personal knowledge of the facts on which the expert bases an opinion. An expert may base an opinion
upon facts/data perceived or made known to the expert at or before the hearing and without prior disclosure of
the underlying facts/data. The opposing party can inquire into the basis of the opinion on cross-examination.
Courts serve as gatekeepers and use four principle factors to determine reliability of the principles and
methodology used by experts to reach their opinions (Daubert Test)TRAP.
Tested principles and methods
Rate of error (high or low)
Acceptance in the field by other experts (higher the acceptance the better)
Peer review and publication
IMPEACHMENT OF WITNESS maybe accomplished through:
Prior inconsistent statements (PIS)
o Must be made as part of a formal hearing (under oath)
o Confrontation timing is flexible

Witness must be given opportunity to explain PIS, unless the opposing party (OP) made
statementno opportunity to explain is required.
As long as the witness is given an opportunity to explain or deny the statement,
extrinsic proof of a prior inconsistent statement is admissible to impeach the
witnesss testimony. If the PIS was made under penalty of perjury at a prior trial
or proceeding, or in a deposition, it is admissible nonhearsay; and admissible as
substantive evidence.
When PIS is used to impeach, the truth or falsity of the statement is immaterial;
what is important is that the witness has spoken inconsistently. Even if the
deposition testimony is being offered for the purpose of establishing its truth, it
still would not constitute hearsay evidence.
Bias, interest or motive to misrepresent
o Must be confronted on the stand and may be shown by extrinsic evidence.
Sensory deficiencies
o Bad eyes/ears; under the influence of drugs or alcohol etc.
Bad reputation or opinion about witnesss character for truthfulness
o No specific acts are allowed; general opinion or reputation testimony.
Criminal convictions
o False statements as element of crime court must admit extrinsic evidence.
Any prior convection involving dishonest or false statements.
o Any felony crime within courts discretion to allow.
Under both categories, the crime must be within ten years from conviction or release
from prison/parole/probation (whichever is later)if over, a court generally will not
allow unless probative value is substantial.
Rehabilitation of witness allowed.
o Can use prior constant statement (PCS) if statement was made before
there was a motive to fabricate.
Bad acts w/o conviction that reflect adversely on witnesss character for truthfulness
o Cannot use extrinsic evidence to prove bad acts unless relevant for other purpose.
Rehabilitation of witness allowed.
Can use PCS if statement was made before there was motive to fabricate.
Contradiction of facts
o Must be material to use extrinsic evidence
Rehabilitation of witness allowed.
Can use PCS if statement was made before there was motive to fabricate.

CHARACTER EVIDENCE is generally not admissible to prove a persons conduct on a particular occasion
(no propensity evidence), except:
In a civil case where evidence of a persons character is an essential element of the claim or defense
(provable by reputation, opinion, and specific acts).
o Tort action of negligent hiring
o Tort of defamation; plaintiffs character is at issue.
o Fraud; defendants character is at issue.
o Child custody dispute
The defendant may offer opinion/general reputation testimony (no specific acts) of a relevant trait in
the case (peacefulness, honesty, law-abiding). A criminal defendant accused of murder is allowed to

present evidence that he is a nonviolent person; a criminal defendant accused of fraud is allowed to
present evidence that he is an honest person.
o If character evidence of the accused is offered by accused the State may rebut.
State may call its own character witnesses.
State may ask character witness about defendants specific relevant bad actsbut must
accept the answers as given.
State must also only ask about bad acts that are within the proper scope of the bad act at
issue (e.g. cannot ask about littering charge in assault prosecution).
If character evidence of the victim is offered by the accusedState may rebut the offered character
traits of victim to counter a claim of self-defense.
o Evidence that defendant knew of victims violent propensity is relevant.
Plaintiffs accident history is not admissible to show that plaintiff is accident pronemay be used to
show prior injury if cause of Plaintiffs injury is at issue.
Defendants accident history is not admissibleit tends to suggest noting more than general character
for carelessnessif other accidents occurred involving the same instrumentality or condition and
under substantially similar circumstancesmay be used to show existence of a dangerous condition,
causation of the accident, or prior notice of condition.
When intent is at issue, a plaintiff may introduce prior similar conduct of a person to raise an inference
of a persons intent on a later occasion (e.g. employment discrimination).
Crimes, wrongs, or bad acts are not admissible to prove action in conformity with character but can be
admissible for other purposes (MIMIC).
o Motive
o Intent
o Mistake (lack of mistake; the Lizzie Borden Hypo).
o Identity (modus operandi)
o Common scheme or plan (modus operandi)
Proof of MIMIC purpose crimesby (1) a conviction or (2) under the conditional
relevancy standardprosecutor needs only to produce sufficient evidence of which a
reasonable juror could conclude that the defendant committed the other crime.
Defense will argue prejudice.
MIMIC evidence can be used in both criminal and civil cases.
HABIT OR ROUTINE OF A BUSINESS is admissible to prove an action in conformity with said
habit on the occasion at issue in the litigation; habitrepetitive response to a particular set of
circumstanceslook to (1) frequency of conduct and (2) particularity.
INDUSTRIAL CUSTOM/STANDARD OF CARE evidence of how others in the same industry act
may be admitted to show how a party in the instant litigation should have acted.
SEXUAL MISCONDUCT & RAPE SHIELD LAW, in both criminal and civil cases, where the
defendant is alleged to have engaged in sexual misconduct, the following types of evidence are
generally inadmissible, (1) opinion or reputation evidence about the victims sexual propensity or (2)
evidence of specific sexual behavior of the victimeither may be allowed in civil cases if court finds
that the probative value substantially outweighs the danger of harm to the victim or unfair prejudice.
o In criminal cases:
Specific sexual behavior of the victim to prove that someone other than the defendant was
the source of the semen or injury to the victim.
Victims sexual activity with the defendant if the defense of consent is asserted.

Love triangle defense- Defendant should be allowed to show that the victim had a sexual
relationship with another at the time of the alleged rape.
In a case alleging sexual assault or child molestation, prior specific sexual misconduct of
the defendant is admissible as part of the prosecution/plaintiffs case for any relevant
purposeincluding defendants propensity for sex crimes as circumstantial evidence of
conduct on the occasion in question.

SUBSEQUENT REMEDIAL MEASURES not admissible to prove liability, need for warning, or product
defectmay be admissible to show ownership, control, feasibility of safety measures.
LIABILITY INSURANCE evidence is inadmissible for the purpose to show fault or absence of fault.
Evidence may be used to show ownership, control, location if disputedmay also be used for impeachment.
COMPROMISE OR OFFERS TO COMPROMISE evidence of settlement offers are inadmissible to prove
disputed liability or value of claimmay be admissible for impeachment (e.g. bias).
Statements of criminal fact during settlement negotiations with a gov regulatory agency are
admissible in a later criminal casehowever discussions to settle are still protected.
PAYMENT OF MEDICAL OR SIMILAR EXPENSES is not admissible to prove liability.
WITHDRAWN GUILTY PLEAS, offers to plea, nolo pleas, statements made during plea negotiations, or
similar proceedings, are not admissible.
PRIVILEGES Federal question jurisdiction applies federal privilege law; diversity, apply state privilege law.
ATTORNEY-CLIENT must be a confidential communication between lawyer or representative of the lawyer
for the purpose of seeking legal assistance. Rule does not apply to pre-existing evidence or when a third party
listens to the conversation. Privilege can be waived by the client.
PHYSICIAN-PATIENT is a confidential communication of information acquired by physician from patient for
the purpose of diagnosis or treatment. Federal privilege applies only to psychotherapy. If patient makes
physical/mental condition at issue, (insanity defense) no privilege applies.
SPOUSAL PRIVILEGE in criminal cases, a spouse cannot be compelled to testify about anything against the
defendant spouse. However, witness spouse may voluntarily testify against the defendant spouse if he/she
chooses to do so. However, confidential communications between spouses in criminal or civil cases, a spouse
is not allowed in the absence of consent by the other spouse to disclose a confidential communication made by
the other during the marriage; except in cases where the communication furthers a crime, acts of family abuse,
or litigation between spouses.
AUTHENTICATION OF WRITINGS is accomplished by (1) a witness has personal knowledge of the
writing, (2) proof of the handwriting is substantiated by lay, expert, or jury comparison, (3) circumstantial
evidence, (e.g. appearance) or (4) the document is self-authenticating, (e.g. government publication or
newspaper). Document may also be authenticated by evidence that it was received in response to a prior
communication to the alleged author.
Ancient Document Rule authenticity may be inferred if the document is (1) 20 years or older (2)
facially free of suspicion, (3) found in a place of natural custody.

Conditional relevancy standarda document is admissible if a court determine that there is sufficient
evidence from which a reasonable juror could conclude that document is genuine.

AUTHENTICATION OF PHOTOGRAPHS a witness may testify on the basis of personal knowledge that
the photograph is an accurate representation of the people or objects portrayed. The basic requirement for the
authentication of demonstrative evidence is to establish that the evidence is a fair representation of what it
purports to show.
BEST EVIDENCE RULE when proving the contents of an original writing, film, sound recording, or x-ray.
A party who seeks to prove the contents of writing must either produce the original writing or provide an
acceptable excuse for its absence. The court may allow the party attempting to prove the contents of the
writing to use secondary evidence to prove the contents of the writing. A proper foundation for the
admissibility of secondary evidence may be laid by a showing that original has been lost and cannot be found.
Applies to legally operative documents when party wants to prove the contents (e.g. contracts).
Applies to a witness testifying to the facts that were learned solely from reading about them in the
writing; without independent knowledge, must provide the writing or video.
PAST RECOLLECTION RECORDED is a hearsay exception that allows a witness to read a writing to the
jury if: (1) the witness once had personal knowledge of the writing; (2) if the witness now forgets the writing
and showing the writing to the witness does not jog his or her memory; (3) the writing was either made by the
witness or adopted by the witness; (4) the writing was made when the event was fresh in the witnesss
memory; and (5) the witness can attest that, when made, the writing was accurate.
HEARSAY is an out of court statement (oral or written), made by someone other than the witness, which is
introduced to prove the truth of the matter asserted. It is generally not admissible. A witnesss own prior
statement, if offered to prove the truth of the matter asserted in the statement is hearsay and is inadmissible
unless an exception or exclusion applies.
PARTY ADMISSION/STATEMENT MADE BY OPPOSING PARTY (non-hearsay) any statements made
by an opposing party are admissible if it is offered against the party. ADOPTIVE ADMISSIONif a party
expressly or impliedly (by silence) adopts a statement made by another person, it is as though the party made
the statement. This also applies to statements of an agent or employee (vicarious party admission) if made
during the relationship and in the scope of duty. Co-conspiritors statements if made during and in furtherance
of the conspiracy.
CRIMINAL DEFENDANTS RIGHT OF CONFRONTATION the Sixth Amendment right of
confrontation requires that the criminal defendant be confronted with the witnesses against him. If the
statement is testimonial (prepared for later criminal prosecution), the declarant is unavailable, (unless
defendant caused declarants absence) and the defendant lacked the opportunity to cross-examine the witness,
the evidence does not come in the criminal proceeding regardless if it meets a hearsay exception
FORMER TESTIMONY of now-unavailable witness if given at a former proceeding or in a deposition is
admissible against a party who, on the prior occasion had an opportunity and motive to cross-examine the
witnessissue in both proceedings must be essentially the same.
DYING DECLARATION statements made under a belief of impending and certain death by a nowunavailable declarant concerning the cause or surrounding circumstance of declarants death. The apparent

dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be
unavailable to testify before the dying declaration is admissible on those grounds. Rule applies in every civil
case and only a homicide in criminal.
STATEMENT AGAINST INTEREST an unavailable declarants statement against his or her financial
interests, property ownership, and criminal liability.
PRESENT SENSE IMPRESSIONS description of an event made while the event is occurring or
immediately thereafter. (No time to fabricate). The present sense impression exception to the hearsay rule,
only requires that the witness actually hear the declarant make the statement at the time that the declarant is
observing the event. It does not require that the witness also observe the event.
EXCITED UTTERANCES statement concerning a startling event and made while the declarant is still under
the stress of the excitement caused by the event.
PRESENT STATE OF MIND a contemporaneous statement concerning declarants present state of mind,
feelings, or emotions.
DECLARATION OF INTENT a statement of declarants intent to do something in the future, including the
intent to engage in conduct with another person. A declaration of intent to do something in the future is
admissible as circumstantial evidence tending to show that the intent was carried out.
STATEMENTS OF PRESENT MENTAL STATE OR PHYSICAL CONDITION any statement made to
anyone about the declarants current physical or mental (medical) condition.
STATEMENTS FOR MEDICAL DIAGNOSIS OR TREATMENT statement made to anyone (medical
personnel) for the purpose of obtaining medical treatment of diagnosis if it concerns the declarants present
symptoms, past symptoms, or general cause of condition.
BUSINESS RECORDS for a business record to be admissible as an exception to the hearsay rule, the
declarant must either have personal knowledge of the fact stated or must have received the information from
someone with personal knowledge who transmitted it in the ordinary course of business.
LEARNED TREATISES statements contained in a treatise, periodical, or pamphlet. (1) The statement is
called to the attention of an expert witness on cross-examination or relied on by the expert on direct
examination; and (2) the publication is established as a reliable authority by the experts admission or
testimony, by another experts testimony, or by judicial notice. If admitted, the statement may be read into
evidence but not received as an exhibit.
HEARSAY WITHIN HEARSAY is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.