FEDERAL RULES OF EVIDENCE CHECKLIST

DETERMINE APPLICABILITY OF RULES

FRE 101, 1101

DETERMINE ADMISSIBILITY
IS THE EVIDENCE “RELEVANT”?
FRE 401

EVEN IF THE EVIDENCE IS RELEVANT, ARE THERE REASONS TO EXCLUDE IT?

FRE 403

ARE THERE ANY OTHER REASONS TO EXCLUDE IT, BASED ON THE TYPE OF EVIDENCE IT
IS?

THE EVIDENCE IS CHARACTER EVIDENCE OR EVIDENCE OF HABIT

FRE 404-406

THE EVIDENCE IS ON SUBSEQUENT REMEDIAL MEASURES

FRE 407

THE EVIDENCE IS AN OPINION

FRE 701

THE EVIDENCE IS EXPERT TESTIMONY

FRE 702-705

IF THE CASE DEALS WITH A SEX OFFENSE AND THE EVIDENCE IS OF THE CHARACTER OF THE VICTIM
FRE 412-415

THE EVIDENCE IS OF A WITNESS’ CREDIBILITY

FRE 608-609

THE EVIDENCE IS HEARSAY

FRE 801-802

IS THE EVIDENCE AUTHENTIC?

FRE 901-903

IF THE EVIDENCE IS A WRITING, RECORDING OR PHOTOGRAPH, IS THE BEST EVIDENCE RULE SATISFIED?

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FRE 1001-1004

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 THE HEARSAY RULE

FRE 801. DEFINITION OF HEARSAY

The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement
(c) Hearsay. “Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.

HEARSAY EXEMPTIONS
Essentially, these are the various ways to get things admitted into court. They are not hearsay by
definition.

FRE 801(d) exempts certain types of out-of-court statements from the definition of hearsay and are
often used in grand jury and criminal investigations. These statements are admissible to
prove the truth of the matters they assert, assuming that they are otherwise unobjectionable
because, unlike hearsay, the witness-declarant is available for delayed cross-examination.

THESE ARE NOT EXCEPTIONS!! There are exceptions to hearsay found in FRE 803 and FRE 804,
things that are hearsay but are admitted for whatever reason. There are 37 formal exceptions in
803 and 804. That does not include the exemptions found in 801(d).

FRE 801(d)(1) exempts certain statements made by a declarant who is appearing as a testifying
witness.
FRE 801(d)(2) exempts statements made by a party or made by persons affiliated with a party so
long as the statement are offered against that party.

FRE 801. DEFINITIONS

(d) Statements which are not hearsay. A statement is NOT hearsay if -
(1) Prior statement by witness. The declarant testifies
at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is
(A) inconsistent with the declarant’s
testimony, and was given under oath subject to the penalty
of perjury at trial, hearing, or other proceeding OR
(B) consistent with the declarant’s testimony
and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper
influence or motive, OR
(C) one of identification of a person / made
after perceiving that person.
(2) Admission by party opponent. The statement is
offered against a party and is
(A) the party’s own statement, in either an
individual or a representative capacity OR
(B) a statement of which the party has
manifested an adoption or belief in its truth, OR
(C) a statement by a person authorized by the
party to make a statement concerning the subject, OR
(D) a statement by the party’s agent or servant
concerning a matter within the scope of the agency or
employment, made during the existence of the relationship,
or
(E) a statement by a coconspirator of a party
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 HEARSAY EXCEPTIONS

When an out of court statement is offered to prove its effect on the listener, or some
legally operative fact, or some other matter where relevance does not depend on
inferences about the accuracy of declarant’s belief about an event, the statement is not
hearsay. It is NOT offered to prove the truth of the matter asserted.

Premise of these rules is that these types of statements are reliable enough to be used in the jury’s
fact-finding even without cross-examination of the DECLARANT by the opponent. That is, there is
something about the statements that reveals something about the declarant’s testimonial qualities.
From these circumstances, trustworthiness can be inferred. Thus, the DECLARANT NEED NOT BE
AVAILABLE FOR ANY OF RULE 803 & SUCH STATEMENTS TO BE ADMISSIBLE.

Also, the DECLARANT MUST HAVE FIRSTHAND KNOWLEDGE AS WELL SINCE SHE IS A
WITNESS.

FRE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is unavailable as a
witness:
(1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition or immediately thereafter
(2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
(3) The existing mental, emotional, or physical condition. A statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, or bodily health) but not including a statement or
memory of belief to prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will
(4) Statements for purposes of medical diagnosis or treatment.. Statements made for purposes
of medical diagnosis or treatment and describing medical history, or past and present
symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection. A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable the witness to
testify fully & accurately, shown to have been made or adopted by the witness when the
matter was fresh in the witness’ memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into evidence but may not be itself
received as an exhibit unless offered by an adverse party.
(6) Records of regularly conducted activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, make the memorandum, report, record, or
data compilation, all as shown by the testimony of the custodian or other qualified witness,
unless the source of information or the method or circumstances of preparation indicate a
lack of trustworthiness. The term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
(7) Absence of entry in records kept in accordance with the provisions of paragraph 6.
Evidence that a matter is not included in the memoranda, reports, records, or data
compilation, in any form, kept in accordance with the provisions of (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a
memorandum, report, record, or data compilation was regularly made and preserved,
unless the sources of information or other circumstances indicate a lack of trustworthiness.

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(8) Public records or reports. Records, reports, statements, or data compilations in any form,
of public office or agencies, setting forth (A) the activities in the office, (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and proceedings and against the govt. in
criminal cases, factual findings resulting from an investigation made pursuant and to
authority granted by law, unless the source of information or other circumstances indicate
a lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to
requirements of law statement, or data compilation, or entry.
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or
data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which
a record, report, statement, or data compilation in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a certification in
accordance with rule 902 or testimony, that diligent search failed to disclose the record,
report
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal
or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and similar certificates. Statements of fact contained in a certificate
that the maker performed a marriage or other ceremony or administered a sacrament,
made by a clergyman, public office, or other person authorized by the rules or practices of
a religious organization or by law to perform the act certified, and purporting to have
been issued at the time of the act or within reasonable time thereafter.
(13) Family records. Statements of fact concerning personal pr family history contained in
family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property. The record of a document
purporting to establish or affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by each person by whom it
purports to have been executed, if the record is a record of a public office and an
applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in documents affecting an interest in property. A statement contained in a
document purporting to establish or affect an interest in property if the matter stated was
relevant to the purpose of the document, unless dealings with the property since the
document was made have been inconsistent with the truth of the statement or the purport
of the document.
(16) Statements in Ancient documents Statements in a document in existence 20 years or more
the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations, tabulations, lists,
directories, or other published compilations, generally used and relied upon by the public
or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-
examination or relied upon by the expert witness in direct examination, statements
contained in published treatises periodicals, or pamphlets on a subject of history,
medicine, or other science of art, established as a reliable authority by the testimony or
admission of the witness or by other expert testimony or by judicial notice. If admitted, the
statements may be read into evidence but may be received as exhibits.

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 (19) Reputation concerning personal or family history. Reputation among members of a person’s
family by blood, adoption, or marriage, or among a person’s associates, or in the community,
concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by
blood, adoption, or marriage, ancestry, or other similar fact of personal or family history
before the controversy, as to boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or State or
nation in which located.
(20) Reputation concerning boundaries or general history. Reputation in a community,
arising before the controversy, as to boundaries of or customs affecting lands in the
community, and reputation as to events of general history important to the community
or State or nation in which located.
(21) Reputation as to character. Reputation of a person’s character among associates or
in the community
(22) Reputation as to character. Reputation of a person’s character among associates or
in the Judgement of a previous conviction. Evidence of a final judgment, entered after a trial
or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of
a crime punishable by death or imprisonment in excess of one year, to prove any fact
essential to sustain the judgment, but not including, when offered by the Govt. in a criminal
prosecution for purposes other than impeachment, judgements against persons other than the
accused.
(23) Judgment as to personal, family, or general history, or boundaries. Judgements as proof of
matters of persona, family, or general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of occupation.
(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the court determines that
(A) the statement is offered as evidence of a material fact; (B) the statement is more probative
on the point for which it is offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into evidence. However, a statement
may not be admitted under this exception unless the proponent of it makes known to the
adverse party sufficiently in advance of the trial or hearing to provide the adverse party with
a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and
the particulars of it, including the name and address of the declarant.

FRE 804 HEARSAY EXCEPTIONS REQUIRING THE UNAVAILABILITY OF THE DECLARANT

Grounds for Unavailability

1) declarant is exempt bc the subject matter of his statement is privileged
2) declarant refuses to testify even after court orders
3) declarant testifies as to lack of memory
4) declarant is unavailable bc of death or illness

804(b)(6) EXCEPTION: where the above is a result of the user’s wrongdoing intended to prevent a declarant
from attending.