Evidence Attack Outline: How to Build One

Your long outline stores information; your attack outline makes decisions. The long outline is organized by syllabus topic — a chapter on character, a chapter on hearsay. That organization is useless under time pressure because exam questions do not announce their topic. They give you a piece of evidence and ask whether it comes in.

So the attack outline is organized by the order in which you must ask questions about any item of evidence. It is short (3-6 pages), mostly numbered questions and rule numbers, and contains almost no explanation. Explanation belongs in the long outline. What belongs here is the sequence, the triggers that tell you which branch you are on, and the verbatim language of tests you will otherwise paraphrase badly.

Draft it yourself, from your own notes, in the last three to four weeks of the course. A borrowed attack outline fails because the value is in having built the sequence, and because coverage varies: some professors skip privileges entirely, some spend two weeks on Confrontation Clause doctrine, some teach California Evidence Code alongside the Federal Rules.

Page one is the spine. Every other page is a branch you drop into when a trigger fires. Run these in order for each item of evidence, and never skip step one — the single most common exam error is analyzing hearsay for a statement that was never relevant, or missing that the answer is 'not offered for its truth' because you never articulated the purpose.

Write the spine as questions, not headings:

Hearsay is where most points live, so give it its own page and make it strictly sequential. Question one: is there an assertion — a person's oral or written statement or assertive conduct under 801(a)? Question two: is the declarant someone other than the person testifying now? Question three, the one worth the most points: is it offered to prove the truth of the matter asserted, or for a non-truth purpose? List your non-truth purposes as a closed set you can scan: effect on the listener (notice, fear, reasonableness), legally operative words (contract, defamation, threat, bribe), impeachment by prior inconsistent statement under 613, and statements offered as circumstantial evidence of the declarant's state of mind or knowledge.

Only if it is offered for its truth do you continue. Next, the 801(d) exemptions — prior statements by a testifying witness under 801(d)(1)(A)-(C) and opposing party statements under 801(d)(2)(A)-(E). Note on your outline that 801(d)(1)(A) requires the prior inconsistent statement to have been under penalty of perjury at a proceeding or deposition, that 801(d)(1)(B) covers consistent statements to rebut a charge of recent fabrication or improper motive and to rehabilitate on other grounds, and that under 801(d)(2) the statement's contents are considered but do not alone establish the predicate — the coconspirator route needs a 104(a) finding, and Bourjaily v. United States is the case to cite.

Then split the exceptions by availability. 803 does not care whether the declarant is available; the heavy hitters are 803(1)-(4), (5), (6)-(7), (8). 804 requires unavailability under 804(a) first; then 804(b)(1) former testimony, (b)(2) dying declaration, (b)(3) statement against interest with the corroboration requirement for statements exposing the declarant to criminal liability, and (b)(6) forfeiture by wrongdoing (Giles v. California requires intent to make the witness unavailable). Close the branch with 805 hearsay within hearsay — every layer needs its own exception — and 806, attacking the credibility of an absent declarant.

Keep two questions separate on the page, because students conflate them: is this character evidence about a party's conduct on the occasion in question, or is it about a witness's credibility? For the first, the propensity ban of 404(a)(1) applies, with the criminal-defendant exceptions in 404(a)(2), the victim-character rules, the 412 rape shield, and 413-415 in sexual assault and child molestation cases. Then 405 controls form: reputation and opinion generally, with specific instances on cross-examination, and specific instances on direct only when character is an essential element of a charge, claim, or defense.

404(b) is a separate question and should be its own numbered block: is the other act offered for a non-propensity purpose (motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake), is there sufficient evidence for a jury to find the act occurred (Huddleston v. United States, a 104(b) standard), does it survive 403, and is a limiting instruction available? Note the notice requirement in 404(b)(3) — the prosecution must articulate the permitted purpose and reasoning in writing before trial.

For witnesses, sequence the five impeachment methods: bias and interest (not codified, always allowed, extrinsic evidence permitted), sensory or mental capacity, prior inconsistent statement (613, extrinsic evidence needs an opportunity to explain), character for untruthfulness (608(a) reputation/opinion; 608(b) specific instances probative of truthfulness on cross only, no extrinsic evidence), and convictions under 609. Write out the 609 grid: 609(a)(2) crimes involving a dishonest act or false statement are automatic; 609(a)(1)(A) felonies against non-defendant witnesses get ordinary 403; 609(a)(1)(B) felonies against a criminal defendant get reverse 403 (admitted only if probative value outweighs prejudicial effect); 609(b) convictions more than ten years old get a stricter reverse balance plus notice.

These branches are short but generate quick points. For opinion testimony, start with the lay/expert line under 701 — perception-based, helpful, and not based on scientific or specialized knowledge. For experts, the 2023 amendment to 702 matters: the proponent must demonstrate each element to the court by a preponderance, and the opinion must reflect a reliable application of the methodology to the facts. Cite Daubert v. Merrell Dow Pharmaceuticals for the reliability inquiry and Kumho Tire Co. v. Carmichael for its extension to all expert testimony. Then 703: an expert may rely on inadmissible facts if experts in the field reasonably would, but disclosure to the jury requires that probative value substantially outweigh prejudicial effect.

For exhibits, remember authentication is a 104(b) conditional-relevance standard — evidence sufficient to support a finding, not proof. Keep a short list of the 901(b) illustrations you covered (witness with knowledge, handwriting, distinctive characteristics, voice, telephone, public records, process or system) and the self-authenticating categories in 902, including certified business records under 902(11)-(12) and certified electronic records and data copies under 902(13)-(14). For the best evidence rules, the trigger is narrow: proving the content of a writing, recording, or photograph. Note the duplicate rule in 1003 and the excuses in 1004.

Put them at the end of the spine as a criminal-case checkpoint, because they operate independently of the Rules — evidence can satisfy a hearsay exception and still be inadmissible. Ask: is the declarant absent, is the statement testimonial, and did the defendant have a prior opportunity to cross-examine? That is Crawford v. Washington. Then use Davis v. Washington and Michigan v. Bryant for the primary-purpose test that distinguishes ongoing-emergency statements from testimonial ones, and Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico for forensic certificates and surrogate analysts. Smith v. Arizona (2024) closes the loophole of admitting an absent analyst's statements as the 'basis' of a testifying expert's opinion: if offered for their truth, they implicate confrontation.

Add a two-line note for Bruton v. United States (a non-testifying codefendant's confession that facially incriminates the defendant) and for due process limits on excluding defense evidence. If your professor covered privileges under FRE 501 and 502, give them half a page with the elements of attorney-client, work product, spousal testimonial versus marital communications, and the 502(b) inadvertent-disclosure test.

Write the exact language of every balancing test on the page — 403's 'substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence' — because paraphrase costs points and because 403 is the fallback argument for every item on the exam. Add a 'trigger words' column: 'she told me,' 'the police report says,' 'he's always been violent,' 'the repair was made the next week.' Those phrases are how the fact pattern signals a branch.

Then test it. Take three old exams or a stack of short hypos and answer them using only the attack outline. Every time you have to open the long outline, that gap goes into the attack outline as one more line. Every time you run a branch out of order, renumber. Two or three rounds of this is what turns a document into a reflex.

What varies: whether your course is FRE-only or teaches a state code alongside it. In California-heavy courses you need a parallel column, because the Evidence Code diverges — § 352 phrases the discretion test differently, § 1235 admits prior inconsistent statements substantively without the 'under oath at a proceeding' limit, and the hearsay exceptions are numbered entirely differently. Bar-tested doctrine on the MBE is the Federal Rules. Coverage also varies on privileges, judicial notice (201), and presumptions (301-302); if your professor never taught it, do not outline it. Finally, format follows the exam: open-book exams reward a denser outline with pinpoint page cross-references to the long outline, while closed-book exams reward brutal compression to what you can reproduce from memory in the first five minutes.