Evidence checklist

Feinberg – Spring 2000

1. What can/shall the court do?

A. decide preliminary questions qualifying a witness 104(a)
B. decide the existence of a privilege 104(a)
C. decide the admissibility of evidence 104(a)
a. does the relevancy of the evidence depend on the fulfillment of a
condition of fact?
(1) yes – ct shall admit the evidence subject to the introduction
of evidence sufficient to support the fulfillment of the
condition 104(b)
D. Conduct hearings on admissibility outside the presence of the jury when justice req’s
or..104(c)
E. Exercise reasonable control over interrogating witnesses and presenting
evidence to make presentation and questioning effective for discovering
truth, avoiding needless waste of time and protecting witnesses from
harassment or undue embarrassment 611(a)
F. Enforce rules limiting the scope of cross and limit leading of witnesses 611(b)
a. ct can’t overly limit ability to cross or will violate C clause
2. Questioning
A. Scope of cross 611(b)
B. Leading questions 611(c)
C. Can’t ask for a legal conclusion, sum up, assume facts not in evidence, ask
for just yes or no unless W is evading
3. What is the evidence?
4. Is the evidence admissible?
A. Is the witness competent to testify? 601
a. heavy presumption 601 – just cross them about the problem on the
stand
(1) Drug user – competent (intoxicated informer)
(2) Child – presumption to let it in
(a) 3 year old kid – no – can’t understand oath or
communicate (little archie)
(b) 9 yrs old testifying about when he was 3 – let it in
and cross him on ability to understand at the time
(little archie)
b. Can person understand the oath? No – out –603 (3 yr old kid
above)
c. Do they have an inability to perceive or communicate? No - out
(1) someone who can only signal yes or no – can argue no
way to really cross – but still let it in
(2) Interpreter – can be used but you have to be able to test
the translation (only 1 person can understand W? – no)
d. Does the person have personal knowledge of the events? Has
foundation been laid as to this knowledge? 602
(1) foundation can consist of W’s own testimony
 e. Hypnosis:
(1) does W remember facts during the hypnosis?
(a) yes – does W remember facts after the hypnosis?
f. yes – maybe let it in
ii. no – don’t let it in; including if the person
remembers what they said under hypnosis
but not the event itself
(2) (SC says can’t ban hypnosis totally – may violate D’s right
to testify on their own behalf Rock v. AK)
g. Religious beliefs – can’s use to show that the person is more or
less credible – 610

B. Is the evidence credible?

a. Is the witness credible?
(1) general veracity – triggers 608
(2) Is the person on the stand? – because you can’t bring in
extrinsic evidence of someone’s lack of credibility (like the
defendant)
- if they are, ask about the events
b. Is the document authentic?
C. Is the evidence relevant?
a. Has tendency to make the existence of any fact of consequence to
the determination of the action more or less probable than it would
be without it 401
b. Irrelevant? Inadmissible 402; Relevant? – admissible 402
c. Low threshold for admissibility – Will the evidence help the jury to
understand the claim?
d. Evidence of jury misconduct (ex. juror testimony that jury was
fucking around and drinking) – generally not relevant Tanner v.
U.S. (except outside influence stuff like bribery)
e. What is the fact/issue sought to be proven? For what purpose is
the evidence offered? What is the issue? What is the substantive
law?
(1) motive, intent, notice, knowledge, damages (statement –
my legs were hurting)
(2) the fact need not be in dispute (can be background stuff
admitted as an aid to understanding – charts, murder
weapons, view of real estate) 401 a.n.
f. Is the evidence material?
(1) Is there a link between the fact that the evidence tends to
establish and the substantive law?
(2) Is the evidence relevant to the substantive fact sought to be
proven? Is it a link in the chain of evidence proving that fact?
(3) Most common irrelevant evidence – where there’s no link
between the evidence and the legal elements
g. Does the evidence make the fact/issue any more or less likely than
it would be without the evidence (Probative)?
(1) does the item tend to prove what is sought to be proven?
(2) Evidence rarely excluded for lack of probative value
(3) Is the evidence direct or circumstantial? McCormick
(a) If believed, it resolves a matter at issue
i. direct – always probative – if it’s material, it’s relevant
McCormick
(b) If believed, still doesn’t resolve matter at issue unless additional
reasoning is used
i. Circumstantial - does it affect the probability of the
proposition?
 doesn’t have to make it more probable than not 401
a.n.
 can still be improbable (insufficient after receipt)
McCormick
 Lack of uniqueness decreases probative value (and
increases prejudicial effect) People v. Adamson
 When evidence is equally consistent with existence
or nonexistence of a fact sought to be proven –
should be excluded (ex. non-unique item) State v.
Brantley
 Can’t be that the evidence and the fact sometimes or
often go together but that they most usually do
State v. Stone (condoms in wallet and incest – way
too prejudicial)
 Remoteness – can the object be connected to the
events? If not, not probative
 The more steps in the chain of inference (and the
less convincing any one of the steps is), the less
probative (E p.13)
 Probability and Statistical Proof
- not probative if methodology is unsound
Collins
- if sound – can be probative of guilt
- but never sufficient on its own to convict –
have to tie D to the specific crime
- (risk of prejudice – the more other evidence,
the lower the risk of prejudice from stats)
 Spoliation of evidence to show consciousness of
guilt
- have to support the chain of inference – that
D was arguably the one that destroyed the
evidence (they were the last one to have it
etc)
 - chain – that when you try to destroy
evidence, you’re guilty
 Silence
- Post-arrest – can’t use silence as probative
of anything after Miranda warning Doyle
- Pre-arrest ex. guy didn’t go to police and
claim self-defense til he was arrested – used
as probative of falsity of self defense claim
Jenkins (crap – his right to remain silent
should still be there – violates self-incrim
privilege)
- Generally – usually so ambiguous it has
little probative value Hale
(also it may be given too much weight – prejudice)
 Nonflight
- not probative of innocence
- b/c too many reasons why people flee – and
bad public policy
 Flight or concealment of identity
- have to use a chain of inferences to make it
relevant - may not work in every case
- if there is evidence to support the chain, it
comes in and D can argue they
fled/concealed for another reason
- If you can’t complete the chain, it won’t be
probative (have to have a connection
between the flight and the crime charged -
ex if D didn’t know she was suspected of a
crime Silverman)
h. Is the evidence only relevant if another condition of fact is fulfilled?
Conditional relevance
(1) Can evidence be introduced sufficient to support a finding of
the fulfillment of that condition? – then it can come in 104(b)
(2) evidence comes in on the condition that they can prove facts
showing it relates to the case
(3) ct won’t require extreme measures to show foundation just
have to have a good basis for the evidence – waste of time (but
other side can challenge)
D. Is the rule involved mandatory or discretionary?
E. Prior acts? Do 404(a)(1) or 404(a)(2) allow admission of acts showing a
character trait/general character evidence?
a. Is it a habit? See I
b. Is it a conviction? See 609
c. Is it for the purpose of attacking truthfulness?
d. Is it a criminal case? – 404(a)(1) and 404(a)(2) don’t apply to civil
e. Is it evidence of the accused D’s character or trait of character
offered to prove action in conformity therewith?
 (1) Yes – Is it offered by the accused? – admissible 404(a)(1)
see how and when (F)
(2) Is it offered by the prosecution?
(a) To rebut character evidence offered by the accused?
– admissible 404(a)(1) see F
(b) Otherwise – not admissible under 404(a)(1) – see
404(b)
(c) (case said allowing P to offer propensity evidence
was harmless error b/c there was other evidence
supporting conviction - crap)
f. Is it evidence of the victim’s character or a pertinent trait of
character to prove action in conformity therewith?
(1) Is it offered by the accused – admissible 404(a)(2)
(2) Is it offered by the prosecution?
(a) To rebut character evidence about the victim offered
by the accused? – admissible 404(a)(2)
(b) Is it a homicide case where D has claimed self-
defense?
i. To rebut evidence that the victim was the
first aggressor - P can offer evidence of
victim’s peacefulness 404(a)(2)
F. If evidence can be admitted under (a)(1) or (a)(2), what kind of evidence
and when?
a. Should 403 still keep it out?
b. If you can offer character evidence, it can be offered by testimony
as to reputation or in the form of an opinion 405(a) (not hearsay
803(21))
c. Accused can offer:
(1) a general character witness as to his own character
(a) during the case-in-chief
 ex. rep for peace or quietude in an assault and
battery case
(2) a general character witness as to the victim’s character
(a) any time – in a self defense case
(3) general character witnesses to rebut P’s rebuttal general
character witnesses
(4) if P offers a general character rebuttal witness, D can cross
with specific instances of D’s good character

d. Accused can’t offer:

(1) specific good instances witness to show their good
character
(a) ever ( - irrelevant)
(2) specific instances or a general witness about someone else’s
bad character to show their propensity to have done the
crime instead of D
 g. Prosecutor can offer:
(1) If D offers a general character witness in case-in-chief:
(a) On cross of character witness, specific instances of
character contradicting the witness (to show lack of
credibility) Michelson
(b) On cross of character witness, ask about the basis
for witness’s opinion – other things witness heard
etc. 405 a.n.
(c) A general bad reputation witness on rebuttal
(d) A general good reputation witness as to victim’s
peacefulness to rebut a homicide self-defense case
404(a)(2)

h. Prosecutor can’t offer:

(1) Even if D offers general character witness
(a) P can’t offer specific instances witness on rebuttal
(2) If D doesn’t offer general character witness
(a) then P can’t bring up instances of D’s character
(b) then P can’t offer any bad rep witnesses
G. If you can’t bring in stuff under 404(a)(1) or (a)(2), Is there a 404(b)
exception to allow a prior? (what are you trying to prove?)
a. have to be able to reasonably conclude that a bad act happened and
D did it
b. Can’t bring general rep witnesses under 404(b)
c. Specific instances that are offered to prove:
(1) proof of intent – can bring in intent evidence on rebuttal if
D claims lack of intent Beechum; otherwise, intent is shown
by proving D did it
(2) motive, state of mind, opportunity,
(3) knowledge – ex. safe combo
(4) preparation, planning – like with self defense or heat of
passion manslaughter defense
(5) to tell the whole story –
(a) D may add parts to the relevant story by raising a
certain defense (D says entrapment, you can bring up
D’s past wrongs to show no entrapment – he does it all
the time)
(b) Facts central to explaining the charge
(c) Zackowitz with the guns
(6) identity – MO money or death, doesn’t have to be an arrest
or conviction; has to be distinctive enough (or not probative
enough to overcome prejudice); more probative if ID is a
main issue and there’s little other evidence Danzey
(7) Misidentification
 (a) Less distinctiveness/similarity needed for D to use MO
to show it was someone else (no prejudice) Jewett
(b) D can show evidence that he was misID’d in the past
Jewett
(8) absence of mistake or accident
(a) can show identity and decrease chance of misID
(b) to show orchestration when D is saying coincidence
Oliphant
(9) Using past acquittals (for MO or absence of mistake now)
(a) estoppel issue – ask whether guilty verdict
necessarily decided the issues you’re using here (D
has to prove it was litigated) Dowling;
(b) you have to be reasonably able to conclude that the
prior bad act happened and D did it
(10) not to show conformity therewith (404(b))
(11) during the case-in chief or on rebuttal to prove an essential
element of the case 405(b)
(12) can use extrinsic evidence under 404(b)
H. Character in civil cases 404
a. inadmissible to show propensity (like carelessness to show
negligence in the accident or peacefulness)
b. no (a)(1)or(2) exceptions
(1) not even when the conduct accused is crime-like (one case
allows it, one doesn’t)
c. can show character or a trait if character is in issue 404a.n. (404b
stuff)
(1) then, can show specific acts, W opinion and reputation
(2) ex’s knowledge, notice of a problem (shouldn’t have let
someone do X); to show no damages to defamed person b/c
it was true; for defense of truth; to show no damages in a
wrongful death b/c the guy was a gambler
(3) Self defense – can show V’s rep for violence if D knew
about it at the time – shows reasonable apprehension
(4) Past accidents put co. on notice of danger from similar
products Exum
(5) Repeat problems could put P on notice that it’s a dangerous
place – contributory (the why concert)
(6) Fact that a company has a Higher accident rate – doesn’t
put them on notice – too general
(7) Streetcar driver started quickly at 2 previous stops – shows
state of mind not propensity Farnsworth
d. if ct lets D put up a good rep witness, P can put up a bad one
I. Can it be construed as a HABIT?
a. routine practice – relevant to show conformity with the habit in a
certain occasion 406
 b. character – general disposition as to a certain trait; habit – regular
practice of certain conduct in a certain situation McCormick
c. maybe semi-automatic McCormick
d. have to lay a foundation that it’s habit; 403 can trump
e. habit for drunkenness – no 406 a.n.
f. addiction – no b/c it’s not volitional and too prejudicial Pothead v.
daredevil
g. past assaults to show habit to assault 406 a.n.
h. can be routine habit of an organization 406 a.n.
i. doesn’t have to be corroborated prior to admission 406 a.n.
j. if there were eyewitnesses to the event – can still bring n habit
evidence 406 a.n.
k. religious practices – not habit 406 a.n.
l. defensive use – I always do x so I must’ve done x.– Meyer v. U.S.
J. Sexual predisposition
a. can’t bring in past sexual behavior or offer evidence to prove
sexual predisposition 412
b. except – 412(b)
(1) criminal case (b)(1) – to show person other than D was a
source of physical evidence; past sexual behavior with the
accused to show consent (or offered by the prosecution); or
when const. requires (see C. Clause)
(2) civil case (b)(2) – if fits above and probative outweighs
prejudicial;
(3) both – reputation evidence of victim – only if victim places it
in controversy
c. there are some notice and requirements 412(c)
K. Impeaching a witness’ credibility (truthfulness)
a. has to be about truthfulness to qualify under 608 or 609 –
otherwise is may covered by 404 or by none of those
b. can only bring up specific instances on cross – no extrinsic
evidence 608(b)
(1) instances about W’s character
(2) or instances about person that W is a general veracity
witness for
c. If a witness A’s general veracity is attacked, you can then bring a
witness W as to their reputation for truthfulness to rehab
d. That witness W can be crossed about specific instances of their
own untruthfulness or A’s
e. Bias evidence is not a challenge to general veracity and isn’t
covered by 608 – so you can’t bring a rehab witness to show
veracity – but you can bring a witness about the bias (just ask
regular relevance q’s etc)
f. A’s testimony conflicts with B’s; neither of their general veracity
has been attacked;
 (1) If A conflicts with B to the point of basically saying B is
full of shit – that’s an attack – not a Q of details or
perception – saying “B has to be lying”
g. Questioning someone’s memory, their testimonial capacity
(eyesight) – not general attacks
h. Bringing up prior inconsistent statements – not necessarily an
attack – judgment call (if it is, you can bring a rehab witness)
(1) prior inconsistent statement – you can use extrinsic
evidence – with certain requirements 613
i. Questioning someone on lying about their name and address –
attacking veracity (can’t use extrinsic evidence) wind river ranch
j. D denying the charge on the stand puts her credibility at issue
Alexander
k. Using a prior conviction as a specific instance 609
(1) Crime of false statement or dishonesty - regardless of
punishment 609(a)(2)
(a) of a witness other than the accused – admitted subject to
609(b)
(b) of the accused who has been/is a witness – admitted subject
to 609(b)
 includes (allows) misdemeanors
 not petty larceny Fearwell
 grand larceny (big theft by stealth) argue either way
(2) Another crime 609 (a)(1)
(a) of a witness other than the accused
i. admitted if crime punishable by death or
imprisonment more than a year under law under
which they were convicted
ii. subject to 403
(b) of the accused who has been a witness
j. if ct determines that the probative value outweighs
the prejudicial effect (609(a)(1) balancing test)
ii. subject to 609(b)
(c) 609(b) time limit
j. older than 10 yrs (from date of conviction or release
– whichever later) – out unless probative
substantially outweighs prejudicial (like a 609(a)(2)
crime)
k. older than 10 yrs – have to give notice and stuff
(d) (a)(1) generally
 doesn’t include misdemeanors (they can’t come in)
Amaechi
 weighing:
- similarity weighs against – adds to prejudice
- veracity argument for non (a)(2) crimes –
You didn’t do it? You did it last year!
 - The older it is, the less probative
- No crimes since – weighs against (decreases
probative value)
- 609(a)(1) - More than 10 yrs old – heavy
presumption that it stays out – clear
prejudice Sims
(e) when there’s been a pardon, annulment or certificate of
rehab 609 (c)
(f) Juvenile adjudications 609(d)
(g) Pendency of appeal 609(e)
(h) How it comes in:
h. if it comes in under (a)(1)or(2), ask about it on cross
when they’re a witness – can offer extrinsic
evidence
i. If D has testified – can use a separate witness to
bring it in on rebuttal mom and pop spa
j. If person hasn’t testified (including D), can’t bring
in their convictions
L. When your witness is attacked in other ways (other than general veracity)
1. can use cross and extrinsic evidence to buttress witness’ testimony
2. ex. memory is faulty – discrepancy between testimony and what
other witnesses/evidence says, bias, etc.
3. Q is whether the issue is too collateral
a. W denies his reason for bias against D – can call a witness
that bad event did happen between W and D harry’s
harborside
b. Can ask about their bias on cross and also call witness
about their bias Abel
c. Trying to show memory is faulty by calling witnesses
showing specific contradictions – depends on how major
they are
(1) you were wrong about what movie was on that day
– too collateral
(2) is it important enough that it actually shows that
W’s memory is faulty?
M. Is the evidence an assertion?
a. Only if it’s intended to be 801 a.n.
b. Doing something that just implies a certain belief – not an
assertion (taking kids on boat)
c. Habitual or automatic conduct – no
d. Silence/inaction – difficult – many reasons for it; maybe – when
person would protest a statement made in his presence if it weren’t
true 801 a.n.
e. If not, not excluded as hearsay 801
N. If so, is the evidence offered for the truth of the matter asserted (does the statement
have to be true to be probative?)?
a. Offered for another reason – not hearsay 801
b. not hearsay = relevant for the mere fact that it was made or heard,
regardless of it’s truth or falsity, and tends to establish an ultimate
fact in the case
c. may be offered to show: actor’s beliefs, speaker’s state of mind,
hearer’s state of mind, if relevant; operative legal facts; to show
hearer had knowledge, was on notice, had motive; to show
association between parties Day;
d. info possessed by hearer can bear on their good faith,
reasonableness, voluntariness of conduct, reasonable apprehension
of danger in self defense
e. to show circumstantial evidence of declarant’s state of mind if
relevant (assertions of feelings = hearsay; statements that imply
state of mind – not)
f. statements or manifestations that someone is nuts
g. to prove declarant’s knowledge of certain reality (see notes)
h. to prove X is alive b/c x made a statement
O. If so, is the statement within an exemption from or exception to the hearsay rule?
P. If the statement is not admissible as a traditional exemption or an exception to the
hearsay rule, it is admissible under the catch-all exception (803(24) or 807)?
a. 5 req’s
(1) circumstantial guarantees of trustworthiness equivalent to
those underlying other exceptions
(2) offered as evidence of material fact (not for impeachment)
(3) more probative on the issue than other reasonably available
evidence
(4) the general purpose of the rules and the interests of justice
will be served
(5) sufficient notice of intent to use
b. Good ex – Dallas County – old newspaper case about 50 yr old
lightning strike
c. Won’t be used when the declarant or other evidence is available
d. See outline
Q. If not an exception or exemption – hearsay – inadmissible 802
R. In a criminal prosecution, is the admission of the hearsay statement forbidden by the
Confrontation Clause or required by the Due Process Clause?
S. Is there any OTHER REASON why it shouldn’t be admitted?
a. Too PREJUDICIAL?
1. Probative value substantially outweighed by danger of
unfair prejudice, confusion of issues, misleading jury or
undue delay, waste of time or needless cumulative evidence
403
(a) unfair prejudice – undue tendency to suggest
decision on an improper basis, commonly an
emotional one 403 a.n.
2. Balance - probative value and need for the evidence vs. harm likely to
result from admission 403 a.n.
(a) consider availability of other means of proof 403
a.n.
(b) consider the probably effect of a limiting instruction
403 a.n.
(c) How unique is it? (less unique: less probative and
more misleading, more prejudicial) Adamson
(d) Evidence that tends to ID D has greater risk of
prejudice than stuff about the crime Adamson
(e) When evidence is equally consistent with existence
or nonexistence of a fact sought to be proven –
should be excluded (ex. non-unique item) State v.
Brantley
(f) Can’t be that the evidence and the fact sometimes or
often go together but that they most usually do or
it’s misleading State v. Stone (condoms in wallet
and incest)
(g) How unique is the foundation – how remote is it –
how well can you tie the evidence to the events?
(h) How much are we willing to rely on the corrective
nature of the adversary system to ensure that
evidence is given its proper value?
3. Are you trying to draw an impermissible inference from
circumstantial evidence?
(a) flight – allowed as cir. evidence of guilt
(b) nonflight rarely allowed as cir. evidence of
innocence
(c) pre-arrest silence – allowed cir evidence of
untruthfulness in self defense
(d) general silence – may be not very probative and
prejudicial – be careful
(e) post-arrest silence – not allowed as cir evidence of
anything
4. Statistical evidence
(a) irrelevant if foundation is faulty (not probative) Collins
(b) too prejudicial if there’s no other support for guilt
(c) be careful about prejudice – awe inspired by math
5. Gross pictures/other pictures
(a) unnecessarily graphic or distorted? – probably out
(1) ex. body with wounds not from death but
from autopsy
(b) necessary to convey details of how victim died – in
(1) even if gross, color, or large
(2) enlarged ok b/c jurors can all look during the
testimony yahweh ben yahweh
 (3) wounds more gruesome than they were in
reality?
(c) just to show murder happened – not how – then
don’t need a bunch of pictures – cumulative
(d) can be used to show identity of victim, manner of
death, murder weapon, any other element of the
crime, to corroborate testimony of witnesses about
how it happened Yahweh Ben Yahweh
(e) In tort case – can show gross injuries as long as not
distorted b/c highly relevant for damages
coppertone corpse
(f) Stipulations – you don’t have to go along with
stipulation of facts – you can put in your photo of
the body or whatever (even if they stipulate cause of
death or whatever) yahweh, grassi
(g)
5. Demonstrative evidence – have to link the evidence to the
particular situation (foundation - need to show it was the
same type of thing that was used in the crime or it will be
misleading)
(a) The more uniquely you can tie evidence to D, more
likely it’s not too misleading (bat and hammer under
bed)
6. Unfair surprise – not a reason to exclude for prejudice –
give a continuance 403 a.n.
b. Waste of time? – especially when evidence is cumulative 403
c. Tendency to confuse or unduly distract from the main issues? –
(probative value outweighed) exclude under 403 McCormick
d. Is it a subsequent remedial measure? 407
1. Was it done subsequent to the injury-causing event?
(a) No – admissible (measures taken prior to event causing the injury can
come in even if they occurred after the manufacture or design of the
product) 407 a.n.
(1) Yes – who did it?
 Third party – 407 doesn’t bar – but consider 401 (if it’s only
relevant to show D was negligent b/c repairs were done
subsequent – that’s impermissible conclusion under 407); also
403; 407 a.n.
 By D: go to 2
2. Is it offered to prove negligence culpable conduct, a defect in a product, a
defect in a product’s design or a need for a warning or instruction? 407
(a) Yes – not admissible 407
(b) No
(1) offered for impeachment – admissible 407
(2) Offered for purpose like proving ownership, control or feasibility
of precautionary measure
 Is there a genuine issue there?
- can only come in if it’s controverted 407
 - stays out if the other party makes an admission (of
ownership or whatever) 407 a.n.
- ex. showing road contractor put out warning signs so
road was within his control 407 a.n.
e. Is it evidence of a compromise or offer to compromise? 408
1. Is it/was it actually a compromise negotiation?
(a) look at degree of formality
(b) evidence that it was a conscious undertaking to compromise or
settle
(c) No – comes in, an admission
2. Yes – Does the compromise relate to a claim disputed as to validity or
amount?
(a) No - like someone who owes a creditor a certain amt but
wants to settle for a smaller amt; admissible 408 a.n.
(b) If you’re unsure, err on the side of admissibility (rule requires
express dispute about validity or amount)
3. Yes – Is it offered to prove an admission of the claim’s validity
(liability) or amount?
(a) No – offered to show bias or prejudice of a witness, to
negative a contention of lack of due diligence in presenting a
claim, to show an effort to buy off or obstruct a criminal
prosecution 408 a.n.
4. Yes – inadmissible
(a) completed compromises including compromises with third
parties are excluded 408 a.n.
5. Unclear – think of the purpose of the law – to promote settlement 408
a.n.
f. Is it Payment or an offer to pay medical or similar expenses ?
1. Furnishing or offering to furnish payment for medical, hospital or
similar expenses from an injury?
2. Not admissible to prove liability for the injury
3. May be made out of compassion – not necessarily probative of liability
409 a.n.
4. Only excludes conduct or statements that are part of the act of
furnishing, offering or promising payment 409 a.n.
g. Is it a PLEA, an offer of a plea, a plea discussion or related statement? 410
1. plea of guilty later withdrawn – can’t be used against D who
participated in the plea - in a civil or criminal proceeding
2. plea of nolo contendere – “
3. any statement in a plea discussion w/ a prosecuting attorney that didn’t
result in a plea of guilty later withdrawn – “
4. Admissible:
(a) another statement made in the course of the same plea or
plea discussion has been introduced so the statement should
be considered in interest of fairness
(b) OR if the statement was made under oath, on record, and in
presence of counsel – admissible in a criminal proceeding for
perjury or false statement
h. Liability Insurance?
1. Insurance or lack thereof - offered to show that someone was negligent
or acted wrongfully? – inadmissible 411
2. Offered for another purpose – proof of agency, ownership, control, or
bias or prejudice of a witness – admissible 411
T. Will it advance the search for truth?
5. Is the evidence sufficient?

Remember under hearsay – ask is the person available, is the person testifying – write
which rules this applies to
804 – requires that there was an opportunity to cross in the past b/c you don’t have the person there to cross
now
801 – if you have the person now, they have to take the stand for it to come in –
opportunity to cross now
person is available – can’t use the residual exception