Complete subject outline

Evidence outline for the bar exam

This outline organizes Evidence around the questions a judge asks in order: is it relevant, is it excluded by a character or policy rule, is it hearsay, is a privilege or competence rule in the way, and can it be authenticated and proved by an original. Each module lists the propositions to memorize, the attack sequence, the traps and exceptions, and a short worked application under the Federal Rules of Evidence. The MBE asks 25 scored questions on the subject and the MEE tests it regularly. Reread this outline as your continuous reference once the first pass through the rule bank by unit is done. Reread the hearsay modules last and out loud, since most Evidence points are lost there, and the question is never only whether a statement is out of court but whether it is offered for its truth.

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Evidence outline coverage by unit
Unit	Modules	Propositions
Relevance	1	5
Policy exclusions	1	5
Character	1	5
Other acts	1	5
Witness proof	1	5
Impeachment	1	6
Experts	1	5
Hearsay foundations	1	5
Defined nonhearsay	1	5
Unavailability exceptions	1	5
Other exceptions	1	6
Confrontation	1	5
Privileges	2	18
Physical and documentary proof	1	6
Trial mechanics	1	12
Hearsay and witness memory	1	12
Character and other acts	1	12
Authentication and best evidence	1	12
Hearsay and circumstances of its admissibility	1	10
Exceptions to the rule against hearsay	1	10
Opinions and expert testimony; presentation of evidence; privileges	1	10

01 · Relevance

Logical relevance, conditional relevance, and Rule 403

Evidence is relevant when it has any tendency to change the probability of a consequential fact, but specified dangers can substantially outweigh its value.

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Black-letter propositions

Consequential facts come from substantive law, credibility, and stipulations.
Rule 403 favors admission and asks whether unfair prejudice, confusion, misleading effect, delay, waste, or cumulativeness substantially outweighs probative value.
Unfair prejudice means an improper decision basis, not simply damaging evidence.
Conditional relevance is admitted if evidence could support a reasonable finding of the connecting fact.
Completeness can require contextual portions of a writing or recorded statement at the same time.

Attack sequence

1Name the proposition and consequential element.

2Explain the inferential chain.

3Assess value in light of alternative evidence.

4Identify a specific 403 danger and limiting measure.

Traps and exceptions

!Authentication and hearsay are separate from relevance.

!A limiting instruction may reduce prejudice.

!Courts do not exclude proof merely because it strongly damages a party.

WORKED APPLICATION

A gruesome photograph depicts injuries, but cause and severity are undisputed and less inflammatory images are available.

The photo is relevant, but marginal value may be substantially outweighed by unfair emotional impact in context. The court should compare need, detail, alternatives, and possible limiting measures.

Essay-ready formulationRelevant evidence tends to prove a consequential fact and is excluded under Rule 403 only when specified dangers substantially outweigh its contextual value.

02 · Policy exclusions

Remedial measures, compromise, medical payments, pleas, and insurance

Policy rules exclude specified conduct for prohibited inferences while often allowing it for a genuinely disputed alternative purpose.

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Black-letter propositions

Subsequent remedial measures cannot prove negligence, culpability, defect, or need for warning, but may prove ownership, control, feasibility if disputed, or legitimate impeachment.
Compromise offers and statements during disputed-claim negotiations cannot prove liability or amount but may show bias, obstruction, or another permitted purpose.
Offers to pay medical expenses cannot prove liability, but accompanying factual admissions are not protected by that rule alone.
Withdrawn guilty pleas, nolo pleas, and protected plea discussions are generally excluded against the defendant.
Liability insurance cannot prove negligence or wrongful conduct but may show ownership, control, or witness bias.

Attack sequence

1Identify exact conduct and timing.

2Was there a disputed claim?

3State the offered purpose.

4Test a genuine alternative use and Rule 403.

5Separate offers from factual admissions.

Traps and exceptions

!The word settlement does not control before a dispute exists.

!Third-party repairs may fall outside the remedial-measure rule.

!Impeachment cannot be a pretext for a forbidden inference.

WORKED APPLICATION

After a crash, a driver says, 'I ran the light; I will pay your hospital bill.'

The payment offer is excluded to prove liability, but the separate admission that the driver ran the light is not protected by the medical-payment rule.

Essay-ready formulationPolicy exclusions turn on exact conduct, timing, dispute, and purpose; connected factual admissions require separate analysis.

03 · Character

Propensity and character methods

Character generally cannot prove conduct by propensity, but criminal-door-opening, essential-element, impeachment, and specialized exceptions permit defined uses.

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Black-letter propositions

A criminal defendant may offer a pertinent trait and may offer a victim's pertinent trait, opening defined prosecution rebuttal.
Reputation or opinion is ordinarily the direct method for propensity; cross-examination can test basis with specific acts.
When character is an essential element, reputation, opinion, and specific acts are available.
Civil propensity evidence remains generally barred except specialized sexual-misconduct provisions.
A homicide prosecution may offer the victim's peacefulness to rebut evidence that the victim was first aggressor.

Attack sequence

1Identify purpose: propensity, element, impeachment, or another theory.

2Identify case type and who opened the door.

3Select pertinent trait and permitted proof method.

4Apply foundation and Rule 403.

Traps and exceptions

!A defendant does not open character merely by testifying.

!Specific acts are not the ordinary direct method for propensity.

!Knowledge of a victim's acts may prove the defendant's state of mind rather than victim propensity.

WORKED APPLICATION

An assault defendant calls a neighbor to give an opinion that the defendant is peaceful.

Peacefulness is pertinent and opinion testimony is permitted. The prosecution can rebut and, in good faith, ask the witness about relevant incidents to test the opinion's basis.

Essay-ready formulationPropensity character is generally barred, but a criminal accused may open the door with a pertinent trait through the permitted method.

04 · Other acts

Crimes, wrongs, acts, and habit

Other acts cannot prove propensity but can support a genuinely disputed noncharacter inference; habit can prove conduct through regular response.

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Black-letter propositions

Permitted theories include motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake, but the proponent must articulate the nonpropensity chain.
Evidence must support a finding that the act occurred and the person committed it.
Similarity and timing depend on the purpose, especially signature identity.
Criminal cases require notice, and Rule 403 remains essential.
Habit is a specific, regular, semiautomatic response to a repeated situation and differs from broad disposition.

Attack sequence

1Identify the disputed issue and inference.

2Assess proof, similarity, timing, and need.

3Apply notice and limiting instruction.

4Compare habit's specificity and regularity.

5Finish with Rule 403.

Traps and exceptions

!A list of permitted purposes is not analysis.

!Intent cannot be a pretext when undisputed.

!A few occasional acts rarely establish habit.

WORKED APPLICATION

A defendant denies knowing packages contained drugs; prior packages used the same unusual concealment and the defendant was warned.

The prior acts may show knowledge through a nonpropensity chain if sufficiently similar and necessary, subject to notice, limiting instruction, and Rule 403.

Essay-ready formulationOther acts require a genuine nonpropensity inference and contextual safeguards, while habit rests on a highly regular specific response.

05 · Witness proof

Competency, personal knowledge, memory, and lay opinion

Testimony requires personal knowledge, oath, and a helpful admissible form; memory devices require distinct foundations.

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Black-letter propositions

Nearly every person is competent unless a specific rule applies.
Almost anything can refresh present recollection; the adverse party can inspect, cross-examine, and introduce relevant portions.
Recorded recollection requires prior knowledge, insufficient current memory, a record made or adopted when fresh, and accuracy; it is read into evidence and received as an exhibit only by the adverse party.
Lay opinion must be rationally based on perception, helpful, and not based on specialized knowledge.
Interpreters and child witnesses require reliability and capacity, not categorical exclusion.

Attack sequence

1Identify what the witness perceived.

2Separate refreshing from recorded recollection.

3Lay timing and accuracy foundations.

4For opinion, test perception, helpfulness, and expertise.

Traps and exceptions

!A refreshing item does not automatically become evidence.

!Recorded recollection differs from a writing that successfully restores memory.

!Lay opinion cannot disguise expert methodology.

WORKED APPLICATION

A witness reads a note made seconds after a crash but still cannot remember; she confirms the note was accurate when made.

The note may be read as recorded recollection after foundation. The proponent cannot automatically admit the exhibit itself; the adverse party controls that option.

Essay-ready formulationWitness proof requires personal knowledge, and memory aids must be classified as refreshing present recollection or recorded recollection.

06 · Impeachment

Bias, contradiction, truthfulness, convictions, and prior statements

Impeachment methods require a defined credibility inference and compliance with foundation, collateral-matter, extrinsic-proof, and rehabilitation limits.

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Black-letter propositions

Bias, interest, motive, incapacity, and qualifying contradiction may permit extrinsic proof.
Reputation or opinion for untruthfulness is allowed; truthful character becomes admissible only after attack.
On cross, the court may allow specific dishonest acts probative of truthfulness, but extrinsic proof is barred for that character purpose.
Felony convictions and crimes involving dishonest act use separate admissibility, balancing, and timing rules.
Prior inconsistent statements impeach and are substantive when sworn at a trial, hearing, proceeding, or deposition.
Qualifying prior consistent statements and prior identifications can be substantive when the witness testifies and is subject to cross.

Attack sequence

1Name the credibility theory.

2Choose method and determine whether extrinsic proof is allowed.

3Lay foundation and apply conviction rules.

4Separate impeachment from substantive use.

5Rehabilitate only the attack made.

Traps and exceptions

!Arrest is not conviction.

!Extrinsic proof of a collateral contradiction is generally barred.

!A prior consistent statement is not admissible merely because inconsistency was shown.

WORKED APPLICATION

A witness denies receiving payment from a party, but bank records prove the payment.

Payment shows bias, a noncollateral theory. Extrinsic proof is generally allowed after appropriate examination because the purpose is not merely character for dishonesty.

Essay-ready formulationImpeachment requires a defined credibility theory, a permitted method, and correct treatment of extrinsic evidence and substantive use.

07 · Experts

Qualification, reliability, bases, and scope

Expert testimony requires a qualified witness, helpful specialized knowledge, sufficient facts, reliable principles and methods, and reliable application.

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Black-letter propositions

Qualification can rest on knowledge, skill, experience, training, or education.
Gatekeeping considers testing, peer review, error rate, standards, acceptance, fit, and discipline-specific indicators.
Experts may rely on personally known, admitted, or field-reasonable facts; otherwise inadmissible bases are disclosed to the jury only when value substantially outweighs prejudice.
Experts may address ultimate issues, but a criminal expert generally cannot state whether the defendant had the mental state constituting an element or defense.
A learned treatise can be read into evidence through a qualified foundation but is not ordinarily received as an exhibit.

Attack sequence

1Define specialized issue and helpfulness.

2Qualify witness.

3Identify data, method, and application.

4Analyze reliability and fit.

5Check basis disclosure and ultimate-issue limits.

Traps and exceptions

!Credentials alone do not establish reliability.

!An expert cannot simply relay inadmissible accusations.

!A legal conclusion telling the jury what law controls may be unhelpful.

WORKED APPLICATION

An engineer uses an untested litigation-only method and cannot explain error rate or application.

The court may exclude the opinion for lack of demonstrated reliability and fit despite strong credentials.

Essay-ready formulationExpert evidence requires qualification, reliable methodology and application, sufficient data, and a helpful fit to the disputed issue.

08 · Hearsay foundations

Definition, nontruth use, verbal acts, and multiple layers

Hearsay is an out-of-court human assertion offered to prove the truth of what it asserts; declarant, proposition, and purpose control.

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Black-letter propositions

A statement can be oral, written, or intended nonverbal conduct; machine output without human assertion is not hearsay.
Words offered for notice, effect on listener, motive, or state of mind may be nonhearsay when truth is unnecessary.
Contract, defamation, threat, permission, and similar operative words are verbal acts.
Questions and commands can contain implied assertions depending on context.
Each layer of hearsay within hearsay needs its own exclusion or exception.

Attack sequence

1Identify declarant and exact statement.

2State the proposition the evidence proves.

3Ask whether truth is necessary.

4Find exclusion or exception for every layer.

5Then apply confrontation and authentication.

Traps and exceptions

!Calling evidence context does not avoid hearsay if truth is necessary.

!The same words can be admissible for one purpose but not another.

!Machine reliability is an authentication issue even when no hearsay exists.

WORKED APPLICATION

A manager hears 'the floor is wet,' and the statement is offered to prove notice before an injury.

Truth is unnecessary if the issue is whether the warning put the manager on notice. A limiting instruction can confine the use.

Essay-ready formulationHearsay analysis isolates the human assertion and the proposition for which it is offered, then resolves each layer separately.

09 · Defined nonhearsay

Opposing-party and prior witness statements

Specified opposing-party and prior witness statements are defined as nonhearsay and do not use ordinary exception requirements.

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Black-letter propositions

A party's own statement is usable against that party without personal knowledge or against-interest requirements.
Adoption requires manifestation of agreement; silence can adopt when a reasonable person would deny and the party heard, understood, and could respond.
Authorized and employee statements require proof of the relationship; an employee statement must concern its scope and be made during employment.
Coconspirator statements require a conspiracy and statement during and in furtherance, with supporting proof beyond the statement as required.
A testifying, cross-examinable witness's prior sworn inconsistency, qualifying consistency, or identification can be substantive.

Attack sequence

1Identify party against whom offered.

2Choose personal, adoptive, agency, employment, or conspiracy route.

3Prove relationship and timing.

4For prior witness statements, confirm testimony and cross-examination.

Traps and exceptions

!A party statement need not have been self-damaging when made.

!An employee must speak about work scope during the relationship.

!Post-conspiracy boasting is not in furtherance.

WORKED APPLICATION

During employment, a routing supervisor emails the company about an accident within her duties.

The email may be an employee opposing-party statement because it concerns her work scope and was made during employment, even without final speaking authority.

Essay-ready formulationOpposing-party statements are nonhearsay when the specified personal, adoptive, agency, employment, or conspiracy relationship is proved.

10 · Unavailability exceptions

Former testimony, dying declarations, interest, and forfeiture

Unavailable-declarant exceptions require both unavailability and a doctrine-specific reliability substitute.

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Black-letter propositions

Unavailability includes privilege, refusal despite order, lack of memory, death or illness, or absence despite reasonable process, unless wrongfully procured by the proponent.
Former testimony requires opportunity and similar motive to develop; civil predecessor-in-interest rules can apply.
A dying declaration concerns cause or circumstances of believed impending death and applies in homicide prosecutions and civil cases.
A statement against interest must be self-adverse when made; criminal exculpatory use requires corroboration.
Forfeiture by wrongdoing requires conduct intended to make the witness unavailable.

Attack sequence

1Prove unavailability.

2Choose exact exception and timing.

3Compare party, predecessor, opportunity, and motive.

4Parse truly self-adverse portions.

5For forfeiture, prove intent to silence.

Traps and exceptions

!Wrongdoing causing absence is not enough for forfeiture without silencing intent.

!Dying declaration does not require actual death at trial.

!A broad narrative is not wholly against interest because one clause is.

WORKED APPLICATION

A defendant threatens a witness specifically so she will not testify, and she disappears.

The defendant forfeits hearsay and confrontation objections to qualifying statements because the conduct was intended to and did cause unavailability.

Essay-ready formulationUnavailable-declarant exceptions require exact foundation, while forfeiture additionally demands intentional witness-silencing misconduct.

11 · Other exceptions

Spontaneous, condition, medical, records, and residual exceptions

Exceptions independent of availability rely on timing, purpose, routine process, or equivalent guarantees of trustworthiness.

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Black-letter propositions

Present-sense impression describes an event during or immediately after perception; excited utterance relates to a startling event while stress persists.
Then-existing condition can prove current state or future intent, but memory generally cannot prove a past event.
Medical statements cover symptoms, history, cause, and source reasonably pertinent to diagnosis or treatment.
Business records require near-time knowledge, regular activity, regular practice, foundation or certification, and trustworthiness.
Public records cover office activities, legal-duty observations, and factual findings, subject to criminal-case exclusions.
Residual hearsay requires equivalent guarantees, exceptional probative value, justice, and notice.

Attack sequence

1Match every element of one exception.

2For records, identify entrant, knowledge source, timing, routine, and foundation.

3Analyze embedded statements separately.

4Check untrustworthiness and criminal limitations.

Traps and exceptions

!A record does not cleanse a customer's accusation.

!Police observations face special prosecution restrictions.

!Past-memory statements do not ordinarily fit then-existing state of mind.

WORKED APPLICATION

A hospital chart routinely records a patient's statement identifying an assailant.

The chart may satisfy business records, but the patient's statement needs a separate exception. Assailant identity may not be medically pertinent absent facts showing treatment relevance.

Essay-ready formulationEvery hearsay exception requires its exact timing or reliability foundation, and every layer in a record must independently qualify.

12 · Confrontation

Testimonial hearsay in criminal cases

Testimonial hearsay from an unavailable declarant is generally inadmissible against an accused absent prior opportunity for cross-examination or forfeiture.

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Black-letter propositions

Formal testimony and prosecution-focused statements are testimonial.
Emergency-focused statements are more likely nontestimonial; primary purpose considers threat, participants, formality, and circumstances.
Confrontation is independent of hearsay exceptions.
A declarant's appearance for meaningful cross-examination generally satisfies the clause despite memory loss.
Forfeiture requires intent to prevent testimony.

Attack sequence

1Is this criminal and offered against accused?

2Identify declarant and testimonial character.

3Determine unavailability and prior cross opportunity.

4Test forfeiture.

5Then finish hearsay analysis.

Traps and exceptions

!Reliability alone does not replace cross-examination.

!Ordinary administrative business records are often nontestimonial; forensic trial reports may be testimonial.

!A machine is not a witness, but embedded analyst assertions are.

WORKED APPLICATION

A lab analyst certifies a substance for trial, but only a substitute analyst testifies.

The prosecution-focused certification is testimonial. Admission is problematic unless the declarant is unavailable and the accused had prior cross-examination.

Essay-ready formulationCriminal testimonial hearsay requires present or prior cross-examination unless intentional forfeiture applies, independent of ordinary hearsay law.

13 · Privileges

Attorney-client, work product, marital, and related protection

Privileges protect defined relationships and communications, with different holders, waiver rules, exceptions, and survival.

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Black-letter propositions

Attorney-client privilege covers confidential communications among privileged persons for legal assistance, not underlying facts.
Corporate privilege can cover employees communicating within role for legal advice; copying counsel is insufficient.
Crime-fraud, lawyer-client disputes, and joint-client later disputes are important exceptions.
Work product protects litigation-prepared materials with qualified fact protection and stronger opinion protection.
Spousal testimonial privilege in federal criminal cases belongs to the witness spouse during marriage; confidential marital communications generally survive divorce.
Other privileges depend on governing law and context.

Attack sequence

1Identify governing privilege law.

2Name holder, participants, communication, purpose, and confidentiality.

3Test waiver and scope.

4Apply exceptions.

5Distinguish privilege, work product, and ethics duties.

Traps and exceptions

!Facts do not become privileged when told to counsel.

!Unnecessary third-party presence usually destroys confidentiality.

!Future crime-fraud differs from discussing completed misconduct for defense.

WORKED APPLICATION

A client asks a lawyer to help falsify records next week.

The request is in furtherance of planned fraud and falls within crime-fraud; ordinary confidential admissions about past conduct for legal advice could be protected.

Essay-ready formulationPrivilege requires a protected confidential relationship and purpose and can be lost through waiver or an applicable exception.

14 · Physical and documentary proof

Authentication, original documents, notice, and presumptions

Exhibits require enough evidence of genuineness, and proof of a writing's contents triggers original-document rules.

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Black-letter propositions

Authentication can use witness knowledge, distinctive features, chain of custody, voice or handwriting identification, public records, process evidence, or self-authentication.
The threshold is evidence sufficient for a reasonable jury, not conclusive proof.
The original-document rule applies when proving content, not an event independently perceived.
Duplicates generally suffice absent genuine authenticity question or unfairness; secondary proof is allowed when originals are lost without bad faith, unobtainable, controlled by an opponent after notice, or collateral.
Civil judicial notice of indisputable adjudicative facts is conclusive; criminal juries may but need not accept it.
Civil presumptions ordinarily shift production rather than ultimate persuasion.

Attack sequence

1Identify exhibit and proposition.

2Lay one concrete authentication route.

3Ask whether content itself must be proved.

4Find original, duplicate, or valid excuse.

5State effect of notice or presumption.

Traps and exceptions

!Authentication does not resolve hearsay.

!A screenshot requires source and integrity evidence.

!Best evidence means original-document doctrine, not strongest possible proof.

WORKED APPLICATION

An eyewitness testifies from memory to a crash she also recorded without offering the video.

The original-document rule does not apply because she proves the event from personal perception rather than the video's contents.

Essay-ready formulationDocuments require sufficient authentication, and an original or acceptable substitute is needed only when a party seeks to prove recorded contents.

15 · Trial mechanics

Preserving error, preliminary questions, limiting instructions, and excluding witnesses

The Federal Rules of Evidence decide who rules on preliminary questions, what a lawyer must do to preserve an evidentiary error for appeal, when a jury gets a limiting instruction, and when witnesses are kept out of the courtroom.

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Black-letter propositions

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and the party preserved it.
If the ruling admits evidence, the party must timely object or move to strike on the record and state the specific ground, unless it was apparent from the context.
If the ruling excludes evidence, the party must inform the court of its substance by an offer of proof, unless the substance was apparent from the context.
Once the court rules definitively on the record, before or at trial, a party need not renew an objection or offer of proof to preserve the claim of error for appeal.
The court may direct that an offer of proof be made in question-and-answer form, and to the extent practicable must conduct a jury trial so that inadmissible evidence is not suggested to the jury.
A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible, and in deciding it the court is not bound by the rules of evidence except those on privilege.
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact exists, and the court may admit the evidence on the condition that the proof be introduced later.
The court must conduct a hearing on a preliminary question so the jury cannot hear it if it involves the admissibility of a confession, if a criminal defendant is a witness and requests it, or if justice so requires; by testifying on a preliminary question a criminal defendant does not become subject to cross-examination on other issues.
If evidence is admissible against a party or for a purpose but not against another party or for another purpose, the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
At a party's request, the court must order witnesses excluded from the courtroom so they cannot hear other witnesses' testimony, or it may do so on its own.
The rule does not authorize excluding a party who is a natural person, one designated officer or employee of a party that is not a natural person, a person whose presence a party shows is essential to presenting its claim or defense, or a person authorized by statute to be present.

Attack sequence

1For a ruling admitting evidence, ask whether there was a timely objection with a specific ground.

2For a ruling excluding evidence, ask whether an offer of proof told the court the substance.

3For a preliminary question, decide whether the judge decides it alone or whether it is a question of conditional relevance for the jury.

4For evidence admissible only for one purpose or against one party, ask whether a limiting instruction was requested.

Traps and exceptions

!A general objection without a specific ground does not preserve error unless the ground was apparent from context.

!A limiting instruction is given on timely request, and the court does not have to give one on its own.

!A party who is a natural person cannot be excluded under the sequestration rule, though a witness may be.

WORKED APPLICATION

A judge sustains a hearsay objection and excludes a witness's answer. The lawyer says nothing more and moves on. On appeal the lawyer argues that the answer would have proved a key fact.

The lawyer did not make an offer of proof, and the substance of the answer was not apparent from context, so the claim of error is not preserved unless plain error applies.

Essay-ready formulationSay who decides the question, apply Rule 103 preservation rules, treat conditional relevance separately from admissibility questions decided by the judge, and address limiting instructions and sequestration.

16 · Hearsay and witness memory

Refreshing memory, recorded recollection, adopted statements, and hearsay within hearsay

A witness who cannot remember may be helped by a writing in two very different ways, and the rules on adopted statements and layered hearsay decide whether an out-of-court statement can come in through more than one speaker.

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Black-letter propositions

When a witness uses a writing to refresh memory while testifying, or before testifying if the court decides that justice requires it, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
If the producing party claims the writing includes unrelated matter, the court must examine it in camera, delete the unrelated portion, and order the rest delivered to the adverse party.
If a writing is not produced or delivered as ordered, the court may issue any appropriate order, but if the prosecution does not comply in a criminal case the court must strike the witness's testimony or, if justice so requires, declare a mistrial.
A recorded recollection is not excluded by the rule against hearsay, regardless of whether the declarant is available, if the record is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately, was made or adopted by the witness when the matter was fresh in the witness's memory, and accurately reflects the witness's knowledge.
If a recorded recollection is admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
A statement offered against an opposing party is not hearsay if the party manifested that it adopted the statement or believed it to be true.
A statement offered against an opposing party is also not hearsay if it was made by the party, by a person the party authorized to make a statement on the subject, by the party's agent or employee on a matter within the scope of that relationship and while it existed, or by a coconspirator during and in furtherance of the conspiracy.
The statement of an agent, an authorized speaker or a coconspirator must be considered but does not by itself establish the declarant's authority, the existence or scope of the relationship, or the existence of the conspiracy or participation in it.
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.
Refreshing recollection is not itself hearsay, because the writing is not offered for its truth, while recorded recollection is an exception that puts the record itself in evidence.
A record of recorded recollection may be admitted only on the foundation that the witness cannot now recall the matter well enough to testify fully and accurately, so a witness with full memory does not qualify.
An adverse party may introduce a portion of the refreshing writing that relates to the witness's testimony, but the party that used it to refresh does not thereby get to introduce it as an exhibit.

Attack sequence

1Ask whether the writing is being used to jog memory or to be read as evidence.

2If used to refresh, check the adverse party's rights to see it and use it on cross.

3If offered as recorded recollection, check the three foundations and who is offering the exhibit.

4For layered statements, identify each layer and match each to an exception or to a non-hearsay rule.

Traps and exceptions

!A recorded recollection may be read to the jury, but the record itself goes in as an exhibit only if the adverse party offers it.

!A writing that refreshes memory does not become evidence merely because it was used.

!Each layer of multiple hearsay needs its own exception, and one exception does not cover both layers.

WORKED APPLICATION

A witness cannot recall a license plate number. The lawyer shows her a note she wrote at the scene, and after reading it she testifies to the number from her own memory.

The note refreshed her memory and is not itself evidence. The adverse party may inspect it, cross-examine about it and offer any part related to her testimony.

Essay-ready formulationSeparate refreshing from recorded recollection, list the adverse party's rights, test each layer of multiple hearsay, and use the party-statement rules for adopted statements.

17 · Character and other acts

Sex-offense cases: the rape shield rule and similar-acts evidence

Rule 412 bars evidence of a victim's other sexual behavior or predisposition, with narrow exceptions, while Rules 413 to 415 let courts admit a defendant's other sexual assaults or child molestation for any relevant matter.

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Black-letter propositions

In a civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove that a victim engaged in other sexual behavior, or to prove a victim's sexual predisposition, is not admissible.
In a criminal case the court may admit specific instances of a victim's sexual behavior offered to prove that someone other than the defendant was the source of semen, injury or other physical evidence.
In a criminal case the court may admit specific instances of a victim's sexual behavior with the person accused, if offered by the defendant to prove consent or if offered by the prosecutor.
In a criminal case the court may admit evidence whose exclusion would violate the defendant's constitutional rights.
In a civil case the court may admit evidence of a victim's sexual behavior or predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, and it may admit reputation evidence only if the victim has placed reputation in controversy.
A party who intends to offer evidence under an exception must file a motion that specifically describes the evidence and states its purpose, at least 14 days before trial unless the court sets a different time for good cause, serve it on all parties, and notify the victim.
Before admitting the evidence, the court must conduct an in camera hearing and give the victim and the parties a right to attend and be heard, and the motion, related materials and record of the hearing must remain sealed unless the court orders otherwise.
In this rule the term victim includes an alleged victim.
In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault, and the evidence may be considered on any matter to which it is relevant.
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation, and a child is a person below the age of 14.
In a civil case involving a claim based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.
A prosecutor who intends to offer other-acts evidence under Rule 413 or 414 must disclose it to the defendant, with witnesses' statements or a summary of expected testimony, at least 15 days before trial or later for good cause, and these rules do not limit admission under any other rule.

Attack sequence

1Identify whether the evidence concerns the victim's other sexual behavior or predisposition, and whether the case involves alleged sexual misconduct.

2If so, see whether an exception in a criminal or civil case applies and whether the motion and in camera hearing requirements were met.

3For evidence of the defendant's other acts, ask whether the charge is sexual assault or child molestation and whether notice was given 15 days before trial.

4Check the definitions of victim, child, and sexual assault.

Traps and exceptions

!The prosecutor may offer the victim's past sexual behavior with the accused, and the defendant may offer it to prove consent.

!Rule 412 protects reputation evidence in civil cases unless the victim puts reputation in controversy.

!Rules 413 to 415 let the court admit other acts for any relevant matter, so the ordinary bar on propensity does not control.

WORKED APPLICATION

A defendant on trial for sexual assault wants to show that the complainant had a sexual relationship with a third person last year, to suggest that she consented.

The evidence concerns other sexual behavior of the alleged victim with a person other than the accused, and no exception applies, so it is inadmissible under Rule 412(a).

Essay-ready formulationApply the Rule 412 prohibition, test each exception, note the motion and hearing procedure, then treat Rules 413 to 415 as separate rules on the defendant's other acts.

18 · Privileges

Privileges in federal court: general rule, psychotherapist, corporate attorney-client, and waiver

In federal court privilege is governed by the common law as developed by the courts, and the leading cases recognize the psychotherapist-patient privilege, extend the corporate attorney-client privilege beyond a control group, and preserve the privilege after death.

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Black-letter propositions

In federal court the common law, as interpreted by United States courts in the light of reason and experience, governs a claim of privilege unless the Constitution, a federal statute, or rules prescribed by the Supreme Court provide otherwise.
In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Confidential communications between a licensed psychotherapist and a patient in the course of diagnosis or treatment, and the therapist's notes of the sessions, are protected from compelled disclosure (Jaffee v. Redmond).
The psychotherapist privilege extends to confidential communications made to licensed social workers in the course of psychotherapy, and the Court rejected a balancing test that would weigh the patient's interest against the need for evidence case by case.
The Court did not doubt that there are situations in which the psychotherapist privilege must give way, for example if a serious threat of harm to the patient or to others can be averted only by disclosure by the therapist.
Communications by a corporation's employees to corporate counsel, made at the direction of corporate superiors to secure legal advice and concerning matters within the scope of the employees' duties, are covered by the corporation's attorney-client privilege, and the privilege is not limited to a control group of upper-level management (Upjohn Co. v. United States).
In the corporate context, middle-level and lower-level employees will frequently possess the information corporate counsel needs, so limiting the privilege to a control group would frustrate its purpose of encouraging full and frank communication.
The work product doctrine applies to Internal Revenue Service summonses.
The attorney-client privilege survives the client's death in a case such as one in which an attorney's notes of a conversation with a client shortly before the client's suicide are sought by a prosecutor (Swidler and Berlin v. United States).
When a disclosure of an attorney-client communication or work product is made in a federal proceeding and waives the protection, the waiver extends to undisclosed communications only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and they ought in fairness to be considered together.
An inadvertent disclosure in a federal proceeding is not a waiver if the disclosure is inadvertent, the holder took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error.
A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before it, in which event the disclosure is not a waiver in any other federal or state proceeding.

Attack sequence

1Determine whether federal or state privilege law governs, based on the source of the claim or defense in a civil case.

2Identify the relationship: psychotherapist and patient, lawyer and client, or corporate employee and counsel.

3For a corporate communication, ask whether it was made to obtain legal advice for the corporation and concerned the employee's duties.

4For a disclosure, test intent, subject matter, fairness and inadvertence rules under Rule 502.

Traps and exceptions

!The corporate privilege is not limited to the control group of upper management.

!The psychotherapist privilege is not subject to a case-by-case balancing test, though it may give way to prevent serious harm.

!An inadvertent disclosure does not waive the privilege when the holder took reasonable steps before and after.

WORKED APPLICATION

A company's lawyer, at the direction of the chief executive, sends a questionnaire to mid-level managers about possible improper payments. The government demands the responses.

The employees' responses were made to counsel at the direction of superiors to secure legal advice and concerned their duties, so the corporation's attorney-client privilege covers them under Upjohn.

Essay-ready formulationSay what law governs privilege, identify the relationship, apply the case that defines the privilege, and then address waiver under Rule 502.

19 · Authentication and best evidence

Authentication, self-authenticating documents, and the original-writing rule

Physical, documentary, and recorded evidence must be authenticated, and when a party proves the content of a writing, recording or photograph the original is required unless a duplicate or other evidence of content is allowed.

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Black-letter propositions

To authenticate an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Testimony of a witness with knowledge that an item is what it is claimed to be is one way to authenticate it, and a nonexpert may give an opinion that handwriting is genuine if familiar with it in a way not acquired for the litigation.
An item may be authenticated by comparison with an authenticated specimen by an expert or the trier of fact, or by its appearance, contents, substance, internal patterns or other distinctive characteristics taken together with all the circumstances.
A voice may be identified by an opinion based on hearing the voice at any time under circumstances that connect it with the alleged speaker, and a telephone call is authenticated by evidence that it was made to the number assigned to a particular person, if circumstances such as self-identification show the person answering was the one called, or to a business if the call related to business reasonably transacted by telephone.
A public record can be authenticated by evidence that a document was recorded or filed in a public office as authorized by law or that the purported record is from the office where such items are kept, and a document or data compilation can be authenticated as an ancient document if it is in a condition creating no suspicion, was in a place where it would likely be if authentic, and is at least 20 years old when offered.
A process or system can be authenticated by evidence describing it and showing that it produces an accurate result.
Domestic public documents that are sealed and signed, certified copies of public records, official publications, and newspapers and periodicals are self-authenticating, and require no extrinsic evidence of authenticity to be admitted.
An original writing, recording or photograph is required in order to prove its content unless the rules or a federal statute provide otherwise.
An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it, and for electronically stored information an original includes any printout readable by sight if it accurately reflects the information.
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
Other evidence of the content of a writing, recording or photograph is admissible if all the originals are lost or destroyed and not by the proponent in bad faith, if an original cannot be obtained by judicial process, if the party against whom the original would be offered controlled it, was on notice, and failed to produce it, or if the item is not closely related to a controlling issue.
The court may admit a summary, chart or calculation offered to prove the content of voluminous admissible writings, recordings or photographs that cannot be conveniently examined in court, and the proponent must make the underlying originals or duplicates available to other parties at a reasonable time and place.

Attack sequence

1Ask what the proponent claims the item is and what evidence supports that claim.

2Check whether the item is self-authenticating, such as a sealed public document or a newspaper.

3If the party is proving the content of a writing, recording or photograph, ask whether the original is required and whether a duplicate or other evidence of content is allowed.

4For a summary of voluminous records, check that the underlying materials were made available.

Traps and exceptions

!Authentication requires only evidence sufficient to support a finding, not proof beyond doubt.

!The original-writing rule applies when proving the content of a writing, not when a witness testifies from personal knowledge about an event that a writing also recorded.

!A duplicate is usually as good as the original, unless authenticity is genuinely questioned or admission would be unfair.

WORKED APPLICATION

A witness testifies that she recognizes the defendant's voice on a recorded call because she heard him speak at a meeting last year. The defendant objects that she has not been qualified as a voice expert.

A lay opinion identifying a voice is allowed if based on hearing it under circumstances that connect it with the alleged speaker, at any time, so the objection fails.

Essay-ready formulationSay what the proponent must show, identify the authentication method, check for self-authentication, and then apply the original-writing rule and its exceptions.

20 · Hearsay and circumstances of its admissibility

The Confrontation Clause: testimonial statements, emergency questioning, forensic reports, and codefendant confessions

The Sixth Amendment bars testimonial hearsay from a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior chance to cross-examine, and whether a statement is testimonial depends on its primary purpose, with statements made to meet an ongoing emergency generally not testimonial.

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Black-letter propositions

The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination.
The clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class, so a statement made during a station-house interrogation about a past crime is testimonial.
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose is to enable police assistance to meet an ongoing emergency, and they are testimonial when there is no ongoing emergency and the primary purpose is to establish past events potentially relevant to later prosecution.
A 911 call describing events as they are happening and asking for help in an emergency is ordinarily nontestimonial, while a victim's statements to officers who arrive after the event, when no emergency is in progress and the officers are investigating past conduct, are testimonial.
A victim's identification and description of a shooter and the shooting location, given to police to enable them to meet an ongoing emergency, are not testimonial.
A statement qualifies as testimonial if its primary purpose is to create an out-of-court substitute for trial testimony, and courts consider all of the relevant circumstances, including the informality of the setting and the declarant's age.
A very young child's statements to teachers about abuse, made to identify and end a threat and not to create evidence for prosecution, are not testimonial, because statements by very young children will rarely, if ever, implicate the Confrontation Clause.
Sworn certificates of a forensic analyst stating the weight and identity of a substance are testimonial affidavits, so the prosecution may not introduce them without the analyst's live testimony unless the analyst is unavailable and the defendant had a prior chance to cross-examine.
The prosecution may not introduce a forensic laboratory report containing a testimonial certification through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the test.
In a joint trial, admission of a nontestifying codefendant's confession that implicates the defendant violates the defendant's right of cross-examination, despite an instruction to the jury to consider it only against the codefendant.

Attack sequence

1Decide whether the statement is hearsay offered against the accused in a criminal case.

2Ask whether it is testimonial by its primary purpose, looking at the circumstances objectively.

3If testimonial, check whether the declarant is unavailable and whether there was a prior chance to cross-examine.

4For forensic reports, identify who made the certification and whether that person testifies.

5If the statement is nontestimonial, apply the ordinary rules of evidence.

Traps and exceptions

!A statement can satisfy a hearsay exception and still violate the Confrontation Clause if it is testimonial.

!Emergency statements that help police respond to a present danger are generally not testimonial.

!A different analyst cannot simply read another analyst's testimonial report to the jury.

!A limiting instruction does not cure the admission of a nontestifying codefendant's confession that implicates the defendant.

WORKED APPLICATION

A woman calls 911 while an attacker is still in her home, and the caller says he is hitting her and gives his name. She does not appear at trial, and the prosecution plays the recording.

Her statements were made to enable police assistance to meet an ongoing emergency and are nontestimonial, so the Confrontation Clause does not bar the recording, and its admissibility turns on the rules of evidence.

Essay-ready formulationState the Crawford rule, classify the statement by its primary purpose, and apply the requirements of unavailability and prior cross-examination if it is testimonial.

21 · Exceptions to the rule against hearsay

Public records, learned treatises, character reputation, statements against interest, forfeiture, and rules on insurance, judges, jurors, and religion

Public office records, learned treatises, reputation about character, statements against interest, and statements by a party who wrongfully made the declarant unavailable each have their own hearsay conditions, and separate rules bar proof of insurance to show fault, testimony by the presiding judge, juror testimony about deliberations, and religious belief to attack credibility.

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Black-letter propositions

A record or statement of a public office is not excluded by the hearsay rule if it sets out the office's activities, a matter observed while under a legal duty to report but not, in a criminal case, a matter observed by law-enforcement personnel, or in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, and the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
A statement in a treatise, periodical, or pamphlet is admissible if it is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination and the publication is established as a reliable authority, and if admitted it may be read into evidence but not received as an exhibit.
A reputation among a person's associates or in the community concerning the person's character is not excluded by the hearsay rule, whether or not the declarant is available.
A statement is admissible as a statement against interest, if the declarant is unavailable, when a reasonable person in the declarant's position would have made it only if believing it true because it was so contrary to the declarant's proprietary or pecuniary interest or so tended to expose the declarant to civil or criminal liability.
A statement against interest offered in a criminal case as one that tends to expose the declarant to criminal liability must be supported by corroborating circumstances that clearly indicate its trustworthiness.
A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result, is not excluded by the hearsay rule if the declarant is unavailable.
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully, but it may be admitted for another purpose, such as proving a witness's bias or agency, ownership, or control.
The presiding judge may not testify as a witness at the trial, and a party need not object to preserve the issue.
During an inquiry into the validity of a verdict, a juror may not testify about statements made or incidents during deliberations, the effect of anything on a juror's vote, or any juror's mental processes, but a juror may testify about extraneous prejudicial information, an outside influence, or a mistake in entering the verdict on the form.
Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Attack sequence

1Identify the exception or rule that fits the proffered statement or evidence.

2For a public record, check the category and whether the opponent shows a lack of trustworthiness.

3For a treatise, check the expert connection and the reliable-authority showing.

4For a statement against interest, check unavailability and corroboration in a criminal case.

5For a juror or judge, apply the competency rules and their exceptions.

Traps and exceptions

!A police officer's observations are not admissible through the public-records exception against a defendant in a criminal case.

!A treatise statement may be read to the jury but not handed over as an exhibit.

!A statement against interest in a criminal case that exposes the declarant to liability needs corroboration.

!A juror may testify about outside influence but not about what other jurors said in deliberations.

WORKED APPLICATION

After a verdict, a juror says she voted for guilt because another juror said the defendant had a prior record that was not in evidence. Another juror says the foreperson pressured him to change his vote during deliberations.

The first juror's account about extraneous prejudicial information is an allowed exception, but testimony about what jurors said in deliberations or about the pressure on a juror's vote is barred by Rule 606(b).

Essay-ready formulationIdentify the exception or rule, state its conditions, and apply them to the facts, noting who may testify and any required foundation.

22 · Opinions and expert testimony; presentation of evidence; privileges

Expert reliability (Rule 702, Daubert, Joiner, Kumho), judicial notice (Rule 201), and the spousal testimonial privilege (Trammel)

A federal judge admits expert testimony only if the proponent shows it is more likely than not helpful, based on sufficient facts, reliably derived, and reliably applied, the court may take judicial notice of facts not subject to reasonable dispute, and in federal criminal cases the witness-spouse alone holds the privilege to refuse to testify adversely to the other spouse.

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Black-letter propositions

A witness qualified as an expert by knowledge, skill, experience, training, or education may give an opinion if the proponent shows that it is more likely than not that the testimony will help the trier of fact, is based on sufficient facts or data, is the product of reliable principles and methods, and reflects a reliable application of those principles and methods to the facts.
The Federal Rules of Evidence and not the Frye general-acceptance test provide the standard for admitting expert scientific testimony in federal court, and the judge acts as a gatekeeper to ensure that expert testimony rests on a reliable foundation and is relevant.
Factors relevant to reliability include whether the theory or technique can be and has been tested, whether it has been subjected to peer review and publication, its known or potential error rate and standards controlling its operation, and whether it has attracted widespread acceptance in the relevant community, but the inquiry is flexible and focuses on principles and methodology, not on the conclusions they generate.
The gatekeeping obligation applies to all expert testimony, including that of engineers and other nonscientists, and the Daubert factors may be considered but are not a definitive checklist and may or may not be pertinent depending on the expert and the subject.
A court need not admit opinion evidence connected to existing data only by the expert's own say-so, and a trial judge's decision to admit or exclude expert evidence is reviewed for abuse of discretion.
Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, and not wholesale exclusion, are the appropriate means of challenging evidence that rests on valid principles.
A court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
The court may take judicial notice on its own and must do so if a party requests it and supplies the necessary information, and the court may do so at any stage of the proceeding, and a party on timely request is entitled to be heard on the propriety of taking notice.
In a civil case the court must instruct the jury to accept a noticed fact as conclusive, but in a criminal case the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
In federal criminal cases the witness-spouse alone has a privilege to refuse to testify adversely to the defendant spouse, so the defendant cannot prevent a spouse from testifying and the witness may be neither compelled to testify nor foreclosed from testifying, and a spouse who chooses to testify does so voluntarily even after a grant of immunity.

Attack sequence

1For expert testimony, identify the four conditions of Rule 702 and who has the burden.

2Ask whether the expert used reliable methods and applied them reliably to the facts.

3Consider whether the Daubert factors fit this kind of expert, remembering they are flexible.

4For judicial notice, ask whether the fact is beyond reasonable dispute and how the jury must be instructed.

5For spousal testimony, ask who holds the privilege in a federal criminal case.

Traps and exceptions

!General acceptance is not the sole test for scientific evidence under the federal rules.

!Daubert reliability screening applies to nonscientific experts too.

!An expert's opinion linked to the data only by the expert's own say-so can be excluded.

!In a criminal case the jury may reject a judicially noticed fact, unlike in a civil case.

WORKED APPLICATION

In a federal prosecution, a wife whom the defendant married years ago is offered to testify against him and agrees to do so voluntarily after receiving a promise of leniency. The defendant invokes the marital testimonial privilege.

Under Trammel the witness-spouse alone holds the privilege, so the defendant cannot bar her from testifying, and her voluntary agreement after immunity or leniency does not make her testimony involuntary.

Essay-ready formulationState the Rule 702 conditions and the Daubert factors and apply them, or state the judicial notice standard and the jury instruction, or identify the holder of the privilege.

QUICK ANSWERS

What NCBE lists for Evidence

What does presentation of evidence include?+

Introduction of evidence, presumptions, mode and order, impeachment, contradiction and rehabilitation, and proceedings to which the evidence rules apply.

What topics fall under relevancy and reasons for excluding evidence?+

Probative value, authentication and identification, character and related concepts, expert testimony, and real, demonstrative and experimental evidence.

Which privileges and policy exclusions does NCBE list?+

Spousal immunity, attorney-client and work product, physician or psychotherapist-patient, other privileges, insurance, remedial measures, compromise and plea negotiations, and past sexual conduct of a victim.

What is in the writings, recordings and photographs category?+

The requirement of an original, summaries, and the completeness rule. NCBE lists these as category IV of its five Evidence categories.

Which hearsay topics are listed?+

The definition of hearsay, present sense impressions and excited utterances, mental and physical condition, medical diagnosis, past recollection recorded, business records, public records, learned treatises, former testimony, statements against interest and confrontation.

What impeachment methods does the outline list?+

Inconsistent statements, bias and interest, conviction of crime, specific instances of conduct, character for truthfulness, ability to observe, impeachment of hearsay declarants, rehabilitation and contradiction.

What character topics appear in the outline?+

Admissibility of character, methods of proving character, habit and routine practice, other crimes, acts and events, and prior sexual misconduct of a defendant.

Which expert testimony topics are listed?+

Qualifications of witnesses, bases of testimony, the ultimate issue rule, reliability and relevancy, and proper subject matter for expert testimony.

SOURCE DESK

Official NCBE sources

NCBE: MBE subject matter outline↗NCBE: preparing for the MBE↗

Governing text

Evidence answers are built from rule numbers, so keep the current Federal Rules of Evidence open beside this topic. Federal Rules of Evidence (U.S. Courts) ↗