Evidence Exam Checklist

Use one sequence for every item of proof, and never vary it. Relevance under Fed. R. Evid. 401–402 comes first because irrelevant evidence dies immediately. Then Rule 403. Then the categorical exclusions that apply even to relevant, non-prejudicial evidence: character and propensity (404, 405, 406, 412–415), subsequent remedial measures and settlement/insurance rules (407–411), and privilege (501). Then hearsay (801–807). Then, if this is a criminal case and the evidence is offered against the defendant, the Confrontation Clause. Then witness-specific problems: competency (601–606), impeachment (607–613), opinion (701–706). Then foundation: authentication (901–903) and best evidence (1001–1008).

The order matters for scoring. Professors write fact patterns where a piece of evidence clears hearsay but fails 404(b), or clears every rule of evidence but violates Crawford. If you only run the hearsay analysis, you lose the second half of the points. If you run the checklist in a fixed order, you physically cannot skip a category.

Confirm which body of law you are being tested on. Most first-year and upper-level courses test the Federal Rules, but California, New York, and a handful of other states diverge meaningfully — California's Evidence Code has no residual exception in the federal form, treats prior inconsistent statements differently, and Proposition 8 alters character-evidence practice in criminal cases. Ask before the exam; the answer changes your entire outline.

Relevance is a low bar and a one-sentence issue: does the evidence have any tendency to make a fact of consequence more or less probable? Say what the fact of consequence is, say why the inference works, and move on. Spending a paragraph proving relevance is the single most common way students burn time on a race-horse exam.

Rule 403 deserves more, but only when the facts give you something. Look for gruesome photographs, prior bad acts, evidence of wealth or poverty, inflammatory language, and cumulative proof. Remember the standard is asymmetric: exclusion requires that probative value be substantially outweighed by the listed dangers, and the danger is unfair prejudice, not damage to the opponent's case. Old Chief v. United States, 519 U.S. 172 (1997), is the case to cite when a defendant offers to stipulate to an element and the government wants the full evidentiary story — the Court held the stipulation controlled for felon-in-possession status but reaffirmed the general right to prove a case with concrete evidence.

A useful habit: whenever you admit evidence under a specific rule, add one sentence noting that Rule 403 still applies and whether a limiting instruction under Rule 105 would cure the problem. That sentence takes ten seconds and often catches a point.

Ask first: is the evidence offered to show action in conformity with a character trait? If yes, Rule 404(a)(1) bars it unless an exception applies. In a criminal case, the defendant may open the door to a pertinent trait under 404(a)(2)(A), and the prosecution may then rebut; the defendant may attack the victim's trait under 404(a)(2)(B), which opens the defendant's same trait and, in homicide, allows peaceful-character evidence about the victim. Method of proof is Rule 405: reputation or opinion generally, with specific instances on cross-examination and on direct only when character is an essential element (defamation, entrapment, negligent hiring). Michelson v. United States, 335 U.S. 469 (1948), is the classic on cross-examining a character witness about prior arrests.

If the evidence is a prior act offered for a non-propensity purpose — motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake — you are in 404(b)(2). Articulate the exact chain of inference that avoids propensity, note the Huddleston v. United States, 485 U.S. 681 (1988), standard that the jury need only be able to find the act by a preponderance under Rule 104(b), and note the prosecution's pretrial notice obligation under 404(b)(3) and the availability of a Rule 105 limiting instruction.

Then check the specialized rules. Rule 406 habit evidence is admissible without corroboration and is distinct from character — look for near-invariable, semi-automatic conduct. Rule 412 shields a sexual-assault complainant's other sexual behavior with narrow criminal and civil exceptions. Rules 413–415 permit propensity use of prior sexual assault or child molestation in cases where that conduct is at issue, still subject to Rule 403.

Step one: is there an out-of-court statement — an assertion, verbal or nonverbal-and-intended-as-an-assertion — by a declarant? Machine outputs and animal behavior are not statements. Step two: is it offered to prove the truth of the matter asserted? Run the standard non-truth purposes explicitly: effect on the listener (notice, fear, reasonableness), legally operative words such as offer, acceptance, defamation, or threat, circumstantial evidence of the declarant's state of mind or knowledge, and impeachment by prior inconsistent statement. If a non-truth purpose works, admit it and offer the limiting instruction.

Step three: Rule 801(d) exemptions. For a testifying witness subject to cross, check prior inconsistent statements given under oath at a proceeding, prior consistent statements offered to rebut a charge of recent fabrication or improper motive — Tome v. United States, 513 U.S. 150 (1995), requires the consistent statement to predate the motive — and statements of identification. For opposing-party statements, run 801(d)(2)(A) through (E): the party's own statement, adoptive, authorized, agent or employee within scope during the relationship, and coconspirator statements during and in furtherance of the conspiracy.

Step four: exceptions. Under Rule 803, the workhorses are present sense impression, excited utterance, then-existing state of mind (with the Hillmon forward-looking-intent problem and the 803(3) bar on statements of memory or belief), statements for medical diagnosis or treatment, recorded recollection, business records, absence of a record, and public records — noting Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), on factual findings including opinions, and the 803(8)(A)(ii) law-enforcement limit in criminal cases. Under Rule 804 you must first establish unavailability under 804(a), then reach former testimony, dying declarations, statements against interest — read narrowly under Williamson v. United States, 512 U.S. 594 (1994) — and forfeiture by wrongdoing.

Step five: cleanup. Rule 805 for hearsay within hearsay (each layer needs its own exception), Rule 806 for attacking the credibility of a non-testifying declarant, Rule 807 as a genuine last resort with notice, and Rule 902(11)/(12) certifications that let business records in without a live custodian.

Only in a criminal case, only for evidence offered against the accused, and only for testimonial hearsay. Crawford v. Washington, 541 U.S. 36 (2004), bars testimonial statements by an absent declarant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. A hearsay exception does not cure a Crawford problem, and this is exactly where students lose points.

Testimoniality turns on primary purpose. Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 562 U.S. 344 (2011), distinguish statements made to meet an ongoing emergency from those made to establish past events for later prosecution. Ohio v. Clark, 576 U.S. 237 (2015), holds statements to non-law-enforcement adults, including teachers, are unlikely to be testimonial. Forensic reports are testimonial: Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011); Smith v. Arizona (2024) closed the loophole of routing an absent analyst's findings through a testifying expert as mere basis evidence.

Two related doctrines belong on the checklist. Giles v. California, 554 U.S. 353 (2008), limits forfeiture to wrongdoing intended to make the witness unavailable. Bruton v. United States, 391 U.S. 123 (1968), bars a non-testifying codefendant's confession that facially incriminates the defendant in a joint trial, even with a limiting instruction.

Impeachment: run the five classic modes. Prior inconsistent statement under Rule 613 with its extrinsic-evidence conditions; bias, which has no rule number but is always admissible and often the best answer; sensory or mental capacity; character for untruthfulness under Rule 608 — opinion and reputation, plus specific instances on cross only, with no extrinsic evidence; and prior convictions under Rule 609, where you must separate crimes involving dishonest act or false statement (automatically admissible under 609(a)(2)) from other felonies subject to balancing, with a heightened standard for a criminal defendant and the ten-year limit in 609(b). Luce v. United States, 469 U.S. 38 (1984), requires the defendant to testify to preserve a 609 ruling; Ohler v. United States, 529 U.S. 753 (2000), holds preemptive introduction waives the objection.

Opinion: lay opinion under Rule 701 must be rationally based on perception and not rest on specialized knowledge. Expert testimony runs through Rule 702 as amended effective December 1, 2023 — the proponent must show by a preponderance that the opinion reflects a reliable application of reliable methods to sufficient facts — plus Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), for non-scientific expertise. Rule 703 governs inadmissible basis evidence and its restricted disclosure to the jury; Rule 704(b) bars an ultimate-issue opinion on a criminal defendant's mental state.

Foundation: Rule 901(a) requires only evidence sufficient to support a finding that the item is what the proponent claims, and 901(b) lists illustrative methods including witness testimony, distinctive characteristics, voice identification, and process or system. Rule 902 lists self-authenticating items including certified electronic data under 902(13) and 902(14). Best evidence under Rule 1002 applies only when a party is proving the content of a writing, recording, or photograph — check for duplicates under 1003, the excuses in 1004, and summaries under 1006.

Organize by item of evidence, not by rule. Give each disputed exhibit or line of testimony its own heading, then run the checklist within it. This mirrors how a trial actually works, tracks how the professor drafted the fact pattern, and makes your answer easy to grade.

Cite by rule number in text — 'Fed. R. Evid. 803(2)' or simply 'Rule 803(2)' if your professor allows shorthand. In a paper or memo, the Bluebook form is Fed. R. Evid. 404(b)(2), with no date, and cases take standard form: Crawford v. Washington, 541 U.S. 36, 68 (2004). Nothing more is expected on a timed exam.

Argue both sides where the rule has a judgment element — 403 balancing, excited-utterance spontaneity, primary purpose under Bryant, 609 balancing — and state a conclusion anyway. Where the rule is mechanical, such as the 804(a) unavailability list or Rule 805's layered requirement, do not manufacture a debate. Budget by point allocation, and if you run short, write conclusory one-line rulings for the remaining items rather than leaving them unaddressed; a correct one-liner scores, a blank does not.