Contents

Error Checklist.................................................................................................................................2
Relevance Checklist.........................................................................................................................3
Other Relevance Rules Checklist............................................................................................4
Competence Checklist.....................................................................................................................6
Judicial Notice Checklist.................................................................................................................7
BER Checklist.................................................................................................................................8
Hearsay Checklist..........................................................................................................................10
Confrontation Clause Checklist.....................................................................................................14
Character Checklist........................................................................................................................15
Impeachment & Rehabilitation......................................................................................................17

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 Error Checklist
I. For Improperly Admitted Evidence
1. Did the mistake in evidence affect a substantial right of a party? That is, was the
error not harmless but prejudicial?
i. Y  Go to step 2
ii. N  A procedural mistake was made that did not interfere with justice,
and the verdict will not be reversed because of the improperly admitted
evidence.

2. Was the timely objection raised at trial to the evidence?

i. Y  Go to step 3
ii. N  The evidence can only be excluded and the trial ct.’s judgement
reversed if there is plain error. Go to step 4.

3. Was the objection valid and properly presented with the correct grounds for
exclusion?
i. Y  The app. ct. should reverse the verdict and order a new trial or, in
unusual circumstances and depending on what other evidence exists,
substitute a new verdict.
ii. N  The evidence can only be excluded it if it constitutes plain error. Go
to step 4.

4. Was admission of the evidence plain error?

i. Y  App. ct. should reverse verdict and order a new trial, or, in unusual
circumstances and depending on what other evidence exists, substitute a
new trial.
ii. N  The procedural error in failing to object in a correct and timely
fashion waived the objection.

II. For Improperly Excluded Evidence

1. Was a valid explanation provided to the trial ct. about why the evidence should be
admitted despite the opposing party’s objection?
i. Y Go to step 2.
ii. N  The evidence can only be excluded if it constitutes plain error. Go to
step 4.

2. Did the party offering the evidence make an offer of proof?

i. Y  Go to step 3.
ii. N  The evidence can only be excluded if it constitutes plain error. Go to
step 4.
3. Did the incorrectly excluded evidence affect the substantial right of a party? In
other words, was the error not harmless but prejudicial?
i. Y  App. ct. should reverse the verdict and order a new trial or, in
unusual circumstances and depending on what other evidence exists,
substitute a new verdict.

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 ii. N  A procedural mistake was made that did not interfere with justice,
and the verdict will not be reversed because of the improperly excluded
evidence unless the error was plain. Go to step 4.
4. Was exclusion of the evidence plain error?
i. Y App. ct. should reverse the verdict and order a new trial or, in unusual
circumstances and depending on what other evidence exists, substitute a
new verdict. Note that plain error is more likely in the admission of
evidence than it is in exclusion.
ii. N  The Procedural error in failing to object in a correct and timely
fashion or make an offer of proof waived the objection.

III. Standard of Review

1. Did the trial ct. state the legal standard correctly?
i. Y Go to step 2.
ii. N App. ct. should review the evidence in light of the correct legal
standard de novo.

2. Has the trial ct., applying the correct legal standard, exercised its broad
discretionary authority in a reasonable manner in determining the admissibility of
evidence?
i. Y  App. ct. should affirm, even if the judges on the panel might have
reached a different conclusion.
ii. N  App. ct. may reverse for abuse of discretion.

Relevance Checklist
1. Does the evidence proffered have any tendency to make a material fact more or less
likely? Remember, the argument does not have to be ultimately persuasive on the point in
question, it just has to have some minimal probative value.
a. Y ⸧ Evidence is relevant under 401 and the judge should weigh the admissibility
of the evidence under 403. Go to step 2.
b. N ⸧ Evidence is not relevant and should be excluded.

2. In setting out the factors for the 403 balance, determine how much probative value the
piece of evidence has standing alone. Go to step 3.

3. Is there an alternative evidence in the case that proves the proposition in question in a less
prejudicial or distracting manner?
a. Y ⸧ The probative value of the evidence is diminished by the availability of
alternative evidence on the same point. Go to step 4.
b. N ⸧ The probative value of the evidence is arguably enhanced. Go to step 4.

4. In setting out the factors for the 403 balance, consider the unfair prejudice, confusion,
distraction, or waste of time that the evidence might generate. Go to step 5.

5. Are the 403 dangers diminished by a limiting instruction under 105?

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 a. Y ⸧ Discount the unfair prejudice in conducting the 403 balance. If the evidence
is ultimately admitted, use a limiting instruction. Go to step 6.
b. N ⸧ Go to step 6.

6. Conduct the 403 balance: Does the unfair prejudice, confusion, distraction, or waste of
time substantially outweigh the probative value of the proposed evidence?
a. Y ⸧ The evidence is excluded.
b. N ⸧ The evidence is admissible subject to other limitations such as character or
hearsay.
An out-of-court non-verbal utterance is not hearsay, under the Rule, unless the actor intended to
assert something. That intent is a question of fact.

O THER R ELEVANCE R ULES C HECKLIST

Remedial Repair, 407
1. Does the evidence involve a remedial measure taken in a civil case that would have made
the accident or event less likely?
a. Y → Go to step 2.
b. N → ¬407.

2. Was the remedial measure or repair taken after the accident?

a. Y → Go to step 3.
b. N → ¬407

3. Did the evidence of the remedial measure show the Δ’s negligence, culpable conduct, or,
in fed. cts. and majority of states, product liability?
a. Y → 407 bars admission of the evidence unless it is being used for another
purpose. Go to step 4
b. N → ¬407.

4. Do other valid reasons render the evidence admissible?

i. Feasibility or repair;
ii. Proof of ownership; or
iii. Proof of control?

a. Y → Go to step 5.
b. N → Inadmissible under 407. No theory other than one used for culpability.

5. Has the other purpose been controverted?

a. Y → Go to step 6.
b. N → Inadmissible under 407.

6. If one of these controverted “other purposes” exist, does it pass a 403 test?
a. Y → Admissible
b. N → Inadmissible.
Note: 403 is conducted twice here: at the beginning for relevance and at the end for prejudice.
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Compromise, 408
1. Does the evidence arise in a civil case out of:
i. A compromise;
ii. An offer to compromise; or
iii. Surrounding statements in the course of the negotiation?

a. Y → Go to step 2.
b. N → The evidence is not excluded under 408.

2. Did the statement relate to a genuine dispute as to validity or amount?

a. Y → Go to step 3.
b. N → Evidence is not excluded under 408 and may be otherwise admissible as a
statement by a party-opponent.

3. Is the statement offered in a subsequent criminal case, and did the negotiations concern a
claim by a public office or agency in the exercise of its regulatory, investigative, or
enforcement authority?
a. Y → This is an exception to the exclusion of 408, and the evidence in these
limited circumstances is admissible unless excluded by another rule.
b. N → Go to step 4.

4. Is the fact of compromise, offer to compromise, or surrounding statement in negotiation

being offered to demonstrate a purpose other than the party’s belief in the validity of the
claims or amount?
a. Y → The evidence is not being used for the purpose prohibited under 408, and
408 may not exclude it. Be sure to find the specific purpose the evidence is being
used, for example:
i. Demonstrating W bias;
ii. Negating a claim of undue delay; and
iii. Proving an effort to obstruct justice.
Note, impeachment is not an appropriate “other purpose.” If evidence is
admissible for a valid purpose (other than proof of validity or consciousness
of liability) go to step 5.

b. N → 408 will preclude admissibility of the fact of compromise or offer to

compromise and any surrounding statements made during negotiations.

5. If the jury might improperly use the evidence to find validity or consciousness of
liability, examine whether the evidence pass a 403 test.
a. Y → Evidence excluded under 403.
b. N → Evidence is admissible.
Plea Bargain, 410
1. Does the evidence arise out of any of the following:
i. A withdrawn guilty plea;
ii. A plea of nolo contendere;

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 iii. Surrounding statements concerning a withdrawal of a guilty plea or a plea
of nolo contendere; or
iv. Statements made during plea bargaining with a prosecuting atty., in a
criminal case?
a. Y → Go to step 2.
b. N T Evidence is not excluded under 410, but it is likely hearsay. If it involves
statements or actions made by a party, it may be admissible if offered by an
opposing party under 801(d)(2).

2. Has another statement from the same plea discussions already been introduced, and if so,
would fairness dictate that this plea statement also be admitted?
a. Y → The statement made in plea discussions is admissible.
b. N → Go to step 3.

3. Is the statement made in a plea discussion being offered in a criminal prosecutor for false
statement or perjury?
a. Y → If the statement was made under oath, on the record, and with counsel
present, then the evidence is not excluded under 410 and will be admissible as a
statement by an opposing party.
b. N → Statement is excluded by 410.

Insurance, 411
1. Does the evidence relate to whether a person possessed liability insurance?
a. Y → Go to step 2.
b. N → Evidence not excluded under 411.

2. Does the evidence concerning liability insurance potentially go to prove whether a person
acted negligently or otherwise wrongfully?
a. Y → It may be prohibited by 411 unless another valid purpose exists. Go to step
3.
b. N → 411 does not apply.

3. Is evidence of insurance being offered to demonstrate a purpose other than to prove that a
person acted negligent or otherwise wrongfully?
a. Y → The evidence is not being used for purposes prohibited by 411, and 411 will
not exclude. Go to step 4. Proper purpose includes:
i. Proving agency, ownership, or control of an item; and
ii. Demonstrating bias or prejudice of a W.
b. N → Evidence is excluded under 411.

4. If another purpose has been postulated for the evidence, but the jury might also
improperly use the evidence of insurance to find negligence or wrongdoing, does the
evidence pass a 403 test?
a. Y → Evidence is admissible.
b. N → Evidence is inadmissible.

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 Competence Checklist
1. Does fed. law apply to the substance of the case?
a. Y ⸧ Step 2
b. N ⸧ According to 601, determinations of competence are governed by state law

2. Is the witness willing to take an oath or make an affirmation?

a. Y ⸧ Step 3
b. N ⸧ Witness is per se incompetent and may not testify. 603

3. Does the witness understand the solemnity of the oath and the difference between truth
and falsehood?
a. Y ⸧ Step 4
b. N ⸧ Witness is not competent to testify.

4. Is the witness able to comprehend and communicate?

a. Y ⸧ Step 5
b. N ⸧ Witness is not competent to testify.

5. Is the witness testifying as a lay or expert witness, as the judge, a juror, or counsel ion the
case?
a. Y ⸧ Witness is per se incompetent to testify.
b. N ⸧ Step 6

6. Is the witness a juror testifying about jury deliberation in the case?

a. Y ⸧ Step 7
b. N ⸧ Witness is competent. Witness, however, may be impeached for lack of
truthful character, bias, or deficient in witness’ thinking, memory, or perception.

7. Does the witness’ testimony about deliberations concern an alleged mistake in entering
the verdict on the verdict form?
a. Y ⸧ Witness is competent to testify.
b. N ⸧ Step 8

8. Does the witness’ testimony about deliberations concern the introduction of extraneous
prejudicial information?
a. Y ⸧ Witness is competent to testify.
b. N ⸧ Step 9

9. Does the witness’ testimony about deliberations concern any improper outside influence?
This does not include the juror’s use of intoxicants while deliberating.
a. Y ⸧ Witness is competent to testify.

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 b. N ⸧ Witness is incompetent to testify.

Judicial Notice Checklist

1. Does the evidence concern an adjudicative fact?
a. Y → Go to Step 2.
b. N → Judicial notice is not appropriate.

2. Is the adjudicative fact subject to reasonable dispute?

a. Y → Judicial notice is not appropriate.
b. N → Go to Step 3.

3. Is the fact generally known in the jurisdiction?

a. Y → Judicial notice is appropriate. Go to Step 5.
b. N → Go to Step 4.

4. Can the fact be accurately and readily determined from reliable sources?
a. Y → Judicial notice is appropriate. Go to Step 5.
b. N → The court should not grant judicial notice.

5. Did a party make a motion?

a. Y → The judge should grant judicial notice if, after hearing objections, the judge
feels the criteria have been meet. Go to Step 6.

b. N → The judge may take judicial notice sua sponte if the opposing party has been
given a chance to speak. Go to Step 6.

6. What is the effect if judge grants judicial notice?

a. Criminal Cases – the jury may, but is not compelled to, accept the facts as
conclusively proved.

b. Civil Cases – the jury must accept the fact as conclusively proved.

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 BER Checklist
1. Is the item in question a writing, recording, or photo and ⸫ something that falls within
1001?
a. Y → BER applies, go to Step 2.
b. N → BER does not apply.

2. Is the proponent trying to prove the contents of the document? 1002.

a. Is the introduction of the document, photo, or recording legally required? For
example, by the parole evidence rule or the law of defamation?

b. Alternatively, as a matter of trial strategy, has the litigant chosen to rely on a

writing, recording, or photo?
i. Y to either → BER applies, go to Step 3.
ii. N to both → BER does not apply.

3. Is the writing, recording, or photograph “closely related” to a controlling issue? 1004.

a. Y → BER applies, go to Step 4.
b. N → It is collateral and BER does not apply.

4. Is there any reason that a duplicate would be unfair, or is there any question about
authenticity? 1003.
a. Y to either → Proponent must provide original, go to Step 5.
b. N to both → A mechanical duplicate suffices, go to Step 5.

5. Is the referenced document a public record? 1005.

a. Y → BER prefers a certified copy but will accept other evidence if the
proponents, acting with reasonable diligence, cannot provide one. Go to Step 6.
b. N → BER applies, go to Step 6.

6. Is there a legitimate excuse for not applying BER? For example, if the writing, photo, or
recording is either lost or in the hands of the opponent. 1004.
a. Y → Other evidence is permissible.
b. N → The proposed evidence may be excluded by BER.

Page 9 of 20
 Hearsay Checklist
Hearsay Definition
1. Is the statement hearsay at all?
a. Y → 801(d) exemption? Go to step 2.
b. N → No need to fit under an exception.

804—DECLARANT MUST BE UNAVAILABLE

Definition of Unavailability, 804(a)

2. Is the declarant unavailable? 804(a) defines unavailability as including death, illness,
privilege, refusal under penalty of contempt to testify, total memory loss of the declarant,
or the declarant’s being outside the ct.’s subpoena power.
a. Y → Go to step 3.
b. N → Go to step 11.

Former Testimony 804(b)(1)

3. Did the unavailable declarant make a formal statement under oath, subject to CX, in a
deposition or prior proceeding?
a. Y → Go to step 4.
b. N → Statement cannot fit “former testimony” exception. Go to step 5.

4. Did the party against whom the testimony was offered (or, in a civil case, a predecessor in
interest of the party) have a similar motive and opportunity to CX the declarant?
a. Y → Statement is admissible for its truth under the former-testimony exception,
804(b)(1). The will be no CC problem if this is offered against the accused in a
criminal case, because although the statement was testimonial, the accused had the
motive and opportunity to CX. Go to step 5.

b. N → Statement cannot fit the former-testimony exception. Go to step 5.

Dying Declaration, 804(b)(2)

5. Did the unavailable declarant believe her death was imminent?
a. Y → Go to step 6.
b. N → Statement cannot fit the dying declaration exception. Go to step 8.

6. Does the statement concern the events that led to the declarant’s believe that she was
dying?
a. Y → Go to step 7.
b. N → Go to step 8.

7. Is the case a homicide or a civil case?

a. Y → The statement is admissible for its truth under 804(b)(2). There will probably
be no CC problem if this is offered against the accused in a criminal case. Go to step
8.
b. N → The statement cannot fit the dying declaration exception, which does not apply
to any crimes but homicides. Go to step 8.

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 Statements Against Interest, 804(b)(3)
8. Did the unavailable declarant knowingly make a statement so contrary to her financial,
property, tort, contract, or penal interests that no one would say such a thing unless it was
true?
a. Y → Go to step 9.
b. N → The statement cannot fit the 804(b)(3). Go to step 10.
9. Is this a criminal case?
a. Y → The statement fits 804(b)(3), only if there is corroboration of the statement’s
trustworthiness. If the statement was testimonial, there may be CC issues. Run that
analysis. Go to step 10.
b. N → Statement is admissible under 804(b)(3). Go to step 10.

Forfeiture by Wrongdoing, 804(b)(6)

10. Did the party against whom the unavailable declarant’s statement is offered intentionally
render the declarant unavailable or acquiesce in the conduct of another to make the
declarant unavailable?
a. Y → Party has forfeited the right to object to the hearsay under 804(b)(6).
Confrontation right is also forfeited.
b. N → 804(b)(6) does not apply. Go to step 11.

803—DECLARANT AVAILABILITY IMMATERIAL

Present Sense Impression, 803(1)

11. Did the declarant make the statement as she perceived the event or immediately after?
a. Y → Statement is admissible as a present sense impression and may fit other
exceptions. Go to step 12.
b. N → Go to step 12.
Excited Utterance, 803(2)
12. Did the declarant make a statement relating to a startling event or condition?
a. Y → Go to step 13.
b. N → Go to step 14.

13. When making the statement, was the declarant still under the stress of excitement caused
by the startling event or conditions?
a. Y → The statement is admissible as an excited utterance.
b. N → Go to step 14.
Then-Existing Statement of Mind, 803(3)
14. Did the declarant make a statement about her current mental or physical condition,
sensation, thought, or plan?
a. Y → Go to step 15.
b. N → Go to step 17.

Page 11 of 20
15. Was the statement a statement of then-existing memory or then-existing belief to prove
the fact remembered or believed? (Examples: “I believe he went swimming,” to prove the
person went swimming, or, “I remember that the drink tasted funny,” to prove the drink
tasted funny).
a. Y → The statement is not admissible under 803(3), unless it fits the exception for
wills.
b. N → Statement is admissible under 803(3). Go to step 17.

16. Did the statement of memory or belief relate to the existence, validity, or terms of the
declarant’s will?
a. Y → Statement is admissible under 803(3). Go to step 17.
b. No → Statement is not admissible under 803(3). Go to step 17.

Statement Made for Medical Diagnosis or Treatment, 803(4)

17. Was the statement one describing medical symptoms or treatment made for the purpose
of medical diagnosis?
a. Y → Go to step 18.
b. N → It is not admissible under 803(4). Go to step 19.

18. Was the statement pertinent to the medical diagnosis?

a. Y → It is admissible under 803(4), even if the doctor was not a treating physician.
Comments not relevant to diagnosis will be redacted. Go to step 19.
b. N → No admissible under 803(4). Go to step 19.
Recorded Recollection, 803(5)
19. Has the declarant made or adopted a record of a matter about which she once had
knowledge but now can only partly remember?
a. Y → Go to step 20.
b. N → 803(5) does not apply. Note, if the declarant’s memory can be jogged by a
record, it could be used for the non-hearsay purpose of refreshing recollection and, if
so, must be show to OC. Go to step 21.

20. Was the record made or adopted when the matter was still fresh in declarant’s mind?
a. Y → Admissible under 803(5). It will normally be read into the record as testimony,
rather than entered as a physical exhibit unless offered by OC.
b. N → 803(5) does not apply. Note, if the declarant’s memory can be jogged by a
record, it could be used for the non-hearsay purpose of refreshing recollection and, if
so, must be show to OC. Go to step 21
Business Records, 803(6)
21. Is the out-of-court statement a record of regularly-conducted business activity where it
was the regular practice of the business to make such record?
a. Y → Go to step 22.

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 b. N → 803(6) does not apply. Go to step 25.

22. Was the record made by a person with knowledge, or made from information transmitted
by a person with knowledge?
a. Y → Go to step 23.
b. N → 803(6) does not apply. Go to step 25.
23. Was the source of the information part of the regular business loop? In other words, did
the source of the information possess a business duty to speak or otherwise participate in
creating the record?
a. Y → Go to step 24.
b. N → Statement fails the business-duty rule. 803(6) does not apply. Go to step 25.

24. Can the opponent of the evidence prove that the source of information or the method or
circumstances of preparation indicates a lack of trustworthiness? Most common example
is records prepared in anticipation of litigation.
a. Y → 803(6) does not apply. Go to step 25.
b. N → 803(6) applies unless the record is a police report offered by the gov’t in a
criminal case. Go to step 25.
Public Records & Reports, 803(8)
25. Is the hearsay statement a record or report concerning the activities of a gov’t agency?
a. Y → Go to step 26.
b. N → 803(8) does not apply. Go to step 28.

26. Does the gov’t record or report involve any of the following? (1) activities of the gov’t
agency; (2) matters observed pursuant to a duty imposed by law when the public servant
has a duty to report, excluding matters observed by law enforcement personnel; or (3)
factual findings resulting from an investigation made pursuant to legal authority.
a. Y → Go to step 27.
b. N → 803(8) does not apply. Go to step 28.

27. Can the opponent of the evidence prove that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness?
a. Y → 803(8) does not apply. Go to step 28.
b. N → 8103(8) applies. Go to step 28.
Learned Treatises, 803(18)
28. Does the out-of-court statement come from a learned treatise?
a. Y → Admissible under 803(18) once a foundation has been established that the work
is a reliable authority and can be used to impeach experts. If admitted, the treatise
excerpts may be read into evidence but may not be received as an exhibit.
b. N → ¬803(18). Go to step 29.
Ancient Documents, 803(16)
29. Does the out-of-court statement arise from a document that is 20+ years old?
a. Y → Admissible under 803(16) CHECK THAT RULE IS STILL IN EFFECT.
b. N → ¬803(16). Go to step 30.

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 RESIDUAL EXCEPTION, 807
30. Tried every step and still cannot get the statement in?
a. Y → Go to step 31.
b. N → The checklist has generated at least one way that the statement can be used for
its truth. Stop here unless trying to argue in the alternative.

31. Does the otherwise inadmissible, relevant hearsay evidence: (1) provide “guarantess
of trustworthiness” that are “equivalent” to those of established exception; (2) offer
evidence that is more probative on the point for which it is offered than any other
evidence that can reasonable be obtained; and (3) serve the “interests of justice” by
its admission?
a. Y → Go to step 32.
b. N → Inadmissible hearsay. Evidence will not come in.

32. Did the proponent of the evidence provide the opposing party with notice to
demonstrate to the ct. that its failure to do was excusable?
a. Y → statement is admissible for its truth, but the ruling will have no precedential
value.
b. N → Inadmissible hearsay.
Confrontation Clause Checklist
1. Is this a criminal case?
a. Y → Go to step 2.
b. N → ¬CC. In civil cases, FRE controls whether a statement is admissible.

2. Is the evidence being offered against the accused?

a. Y → Go to step 3.
b. N → ¬CC.

3. Does the issue involve a statement made out-of-court?

a. Y → Go to step 4.
b. N → If a live W is testifying about what the W did or saw, and the W’s testimony
is subject to CX, then the CC is not implicated.

4. Is the out-of-court statement being used for its truth?

a. Y → Go to step 5.
b. N → CC does not apply.

5. Is there a way to admit the statement under the hearsay rule?

a. Y → Go to step 6.
b. N → No need to worry about CC because the hearsay bar will prevent the
admission of the out-of-court statement.

6. Is the declarant currently available for CX under oath at the current trial?
a. Y → ¬ CC issue.
b. N → Go to step 7.

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7. Was there an opportunity for the accused to CX the statement at some previous time?
a. Y → ¬ CC issue. Ex. Former testimony that was CX’d at the prior trial, hearing,
or deposition.
b. N → Go to step 8.

8. Is the statement a formal, solemn one? (i.e., a sworn affidavit, answer to police
interrogation at the stationhouse, former testimony, or part of a deposition?)
a. Y → Admission violates CC.
b. N → Statement may still be testimonial. For all Justices but Justice Thomas,
formality and solemnity are factors that contribute to rendering a statement
testimonial, but they are not necessary to find that a statement falls within the CC.
Go to step 9.

9. Is the statement testimonial? E.g., would a reasonable person expect that the prosecutor
would use it against the accused in a criminal trial? Alternatively, is the statement’s
primary purpose to report a crime or collect evidence?
a. Y → Go to step 10.
b. N → Because the statement is nontestimonial, CC does not apply.
Note: There is significant disagreement about when an ongoing emergency
exists, whose perspective matters, and how much context should be considered.

10. Did the accused intentionally make the declarant unavailable in order to prevent the
declarant from testifying?
a. Y → Even though the out-of-court statement is testimonial and would normally
fall under the CC, the forfeiture exception applies, and the declarant’s statement
are admissible. See Scalia on domestic violence cases.
b. N → Go to step 11.

11. Is the statement a dying declaration?

a. Y → S. Ct. in dicta has stated this may be an exception to the confrontation
clause.
b. N → Statement is testimonial and is barred by the CC.

Character Checklist

1. Is the evidence propensity evidence? That is, is it being used circumstantially to show
that a person behaved in conformity with a general character trait or with past conduct?
a. Y → This is traditional character evidence and unless it fits into an exception or
has another legitimate non-character use, it will be excluded. Go to step 2.
b. N → Not traditional character evidence and may be admissible because:
i. It is being used for another purpose under 404(b)(2). Note that often
evidence is susceptible to both an impermissible propensity use and
another, legitimate purpose. The trial judge should conduct a 403 balance
to see if the probative value of the other purpose is substantially
outweighed by the dangers of unfair prejudice, distraction, or confusion
caused by an inappropriate character use.

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 ii. It is being used (in the rare circumstance) when character is “in issue” and
specific-incident evidence of character is admissible under 405(b). The
evidence is admitted not for circumstantial evidence of general propensity
but as direct evidence of character because the trait or character is an
essential element of he claim, crime, or defense.

iii. It is habit evidence under 406.

(a) Evidence that involves semiautomatic, routinized behavior that is
not likely to generate unfair prejudice.

2. If you deem the evidence propensity evidence, next determine whether various
exceptions apply. Does the propensity evidence relate to a W’s character for truthfulness
or credibility?
a. Y → the propensity of a W (in both civil and criminal cases) to be honest is
admissible under 608. Additionally, the W’s general credibility and willingness to
abide by social norms can be raised via impeachment for convictions for certain
crimes under 609.
b. N → Go to step 3.

3. Is this a homicide case where the accused contends that the V was the first aggressor?
a. Y → Prosecutor may introduce reputation and opinion evidence of V’c character
for peacefulness.
b. N → Continue to other exceptions for criminal cases. Go to step 4.

4. Is this a criminal sexual assault or child molestation case?

a. Y → All relevant prior bad acts of the accused are admissible under 413-414.
There is no time limit on the remoteness of the prior offense, and the prior act
need not be convicted conduct. Note that the check on admission of this evidence
is 403 and, in conducting the test, note that propensity use of a prior bad act is by
definition not unfair prejudice.
b. N → Go to step 5.

5. Is this a pertinent character trait of the accused offered by the accused?

a. Y → It may be proved by reputation or opinion evidence by the accused herself or
by a character W for the accused. The prosecutor may then:
i. Rebut the accused’s character evidence with contrary reputation and
opinion evidence regarding the same character trait; or
ii. CX the W for the accused (including the accused herself) regarding
specific instances of pertinent behavior. However, the prosecutor must
have a good faith belief that the specific instances occurred and may not
introduce extrinsic evidence to contradict the W’s answer.
b. N → Go to step 6.

6. Is this a pertinent character trait of the V offered by the accused?

a. Y → Go to step 7.

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 b. N → Propensity evidence is inadmissible.

7. Is this evidence of sexual disposition or sexual history, including the V’s dress?
a. Y → Go to step 8.
b. N → It may be proved by reputation or opinion evidence by the accused herself or
by a character W for the accused, unless it involves a rape victim. The prosecutor
may then:
i. Offer pertinent character evidence about the V to rebut the evidence
offered by the accused about the V;
ii. Offer character evidence on the same trait about the accused; or
iii. CX the W for the accused (including the accused herself) regarding
specific instances of pertinent behavior. However, the prosecutor must
have a good faith belief that the specific instances occurred and may not
introduce extrinsic evidence to contradict the W’s answer.
8. Does it fall under one of the following exceptions for Rape Shield?
i. Evidence that a person other than the accused was the source of semen,
injury, or physical evidence? 412(b)(1)(A).
ii. Evidence victim’s prior sexual relationship with the accused to prove
consent? 412(b)(1)(B).
iii. An ill-defined safety-net exclusion that provides for admitting evidence
about the V’s sexual history and propensities where failure to admit such
evidence “would violate the constitutional rights of the Δ.” 412(b)(1)(C).

a. Y → Character evidence is admissible.

b. N → ¬Admissible.

Impeachment & Rehabilitation

1. Is there testimony from a W? Either a live W on the stand or an absent declarant’s out-of-
court statement being used to prove the truth of the matter asserted?1
a. Y → Go to step 2.
b. N → There is nothing to impeach.
Impeaching for Bias

2. Does the W possess a bias?

i. Familial relationship or emotional involvement with a party;
ii. Business or financial relationship with a party or interest in the case;
iii. A deal with the gov’t to testify and receive leniency in a pending criminal
case; or
iv. Membership in an organization that is interested in the lawsuit.

a. Y → W can be impeached for bias. Extrinsic evidence of bias is admissible. Go to

step 3 to see if other forms of impeachment are appropriate.
b. N → Go to step 3.
1
For the rest of the checklist, I will refer to the live W only, even though under 806 impeachment includes
impeachment of absent declarants.

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Impeaching for Impairment

3. Is there a potential problem with the W’s ability to perceive?

i. Physical impairment to sight and hearing’
ii. Mental defect affecting perception, memory, or understanding; or
iii. Substance abuse that interferes with the ability to process information or
remember.

a. Y → W can be impeached for sensory perception, and extrinsic evidence of

impairment is probably admissible. Go to step 4 to see if other forms of
impeachment are available.
b. N → Go to step 4.
Impeaching for Character for Truthfulness, 608

4. Does a party believe that a W has a general, characterological problem with truthfulness?
a. Y → Go to step 5
i. Opinion and reputation evidence about the W’s character for lack of
truthfulness may be presented. Extrinsic evidence in the form of character
W may be used to prove the opinion and reputation evidence. 608(a).

ii. W may be CX regarding her own specific instances of lack of

truthfulness, but this rule does not apply to convictions, the questioner
must take the answer, and extrinsic evidence disputing the W’s answer is
not permitted.
b. N → Go to step 6.

5. Has the W’s character for truthfulness been attacked? This mostly concerns a direct
attack but can include a line of argument where the only possible conclusion is that the W
is lying.
a. Y → Go to step 6.
i. Opinion and reputation evidence about the W’s character for truthfulness
may be presented to rehabilitate the W. Extrinsic evidence is allowed to
prove the opinion and reputation testimony that the W is truthful. 608(a).

ii. A negative character W may be CX’d regarding the specific instances of

truthfulness, but the question must take the answer, and extrinsic evidence
disputing the W’s answer is not permitted.
b. N → Evidence of a W’s character as truthful and honest is not admissible. Go to
step 6.

6. Has a W, as a character W, offered reputation or opinion testimony concerning the lack

of truthfulness of another W?
a. Y → Go to step 7.
i. W can be impeached concerning her own character for truthfulness sby
reputation and opinion evidence and by specific instances on CX.

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 ii. That W’s testimony can trigger other Ws to contradict her, rehabilitating
the W about whom the character W offered a negative portrayal. These
new Ws could offer opinion and reputation evidence.

iii. That W can be asked about specific instances of conduct relating to

truthfulness of the W about whom she provided character evidence. The
cross-examiner must take the answer and no extrinsic evidence is
permitted.
b. N → Go to step 7.

Impeaching with Prior Crimes, 609

7. Was the W the subject of a criminal conviction? (Guilty pleas are convictions; nolo pleas
are not)
i. Y → Go to step 8.
ii. N → Go to step 15.
a. Was the crime subject to a pardon or juvenile adjudication?
i. Y → Impeachment is generally inadmissible.
ii. N → Go to step 9.

b. Did the W’s crime involve dishonesty or false statement?

i. Y → Go to step 10.
ii. N → Go to step 11.

c. Have fewer than ten years passed since the conviction or release from
confinement (whichever is later)?
i. Y → Evidence of that crime is admissible against any W, whether the
crime was a felony or a misdemeanor. The trial judge must admit te
evidence, and no 403 balancing is allowed.

ii. N → Go to step 14.

8. Was the W convicted of a crime punishable by a year or more in prison? Note, this rle
does not require that time was actually served.
a. Y → Go to step 12.
b. N → The W cannot be impeached with her prior crime.

9. Have fewer than ten years passed since the conviction or the release from confinement
(whichever is later?)
a. Y → Go to step 13.
b. N → Go to step 14.

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 10. Is the W also the accused in a criminal case?
a. Y → the prior crime is admissible only if the prosecution can demonstrate that the
probative value of the impeachment outweighs the unfair prejudice to the accused,
609(a)(1)(b) – this is a reversed 403.

b. N → Unless the impeachment value fails 403, the prior crime is admissible under
609(a)(1)(A). The party resisting the impeachment evidence bears the burden of
proving that the unfair prejudice of the impeachment substantially outweighs its
probative value and should ⸫be excluded

11. Does the probative value of the impeachment with the conviction that took place after the
ten-year limit, supported by specific facts and circumstances, substantially outweigh its
prejudicial effect? This is a very high threshold for admitting the evidence.
a. Y → Impeachment evidence is admissible if appropriate notice was given.
b. N → Impeachment evidence inadmissible, under 609.

Impeachment by Contradiction

12. Is the proposed impeachment independently admissible extrinsic evidence that

contradicts a W’s testimony?
a. Y → The impeachment by contradiction is admissible so long as it is not so
tangential that it fails a 403 balance for waste of time. Examine whether the W
can be impeached by her own prior inconsistent statements.

b. N → Inadmissible. See whether the W can be impeached by her own prior

inconsistent statements.

13. Does the proposed impeachment involve a prior inconsistent statement by the W?
a. Y → W may be questioned about her prior statements.
b. N → Impeachment for prior statement unavailable.

14. Does a party wish to prove the W’s prior inconsistent statement via extrinsic evidence?
a. Y → To admit extrinsic evidence of a prior inconsistent statement, either (1) the
W must be provided an opportunity to “explain or deny” the statement and the
opposing must must be given an opportunity to question the W, or (2) the interests
of justice require admission of the extrinsic evidence.

b. N → W may be questioned about the statement on CX.

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