Full Outline Structure
A hierarchical breakdown of every topic your Evidence outline should cover.
1
Relevance
Basic Relevance — Rules 401-403
- Rule 401 — evidence is relevant if it has any tendency to make a fact of consequence more or less probable
- Rule 402 — relevant evidence is generally admissible; irrelevant evidence is inadmissible
- Rule 403 — relevant evidence may be excluded if probative value is substantially outweighed by unfair prejudice, confusion, misleading jury, undue delay, waste of time, or needless cumulative evidence
- Low threshold for relevance — any tendency, even slight, satisfies Rule 401
Subsequent Remedial Measures & Settlements — Rules 407-411
- Rule 407 — subsequent remedial measures inadmissible to prove negligence/defect; admissible for impeachment, ownership, control, feasibility (if controverted)
- Rule 408 — compromise offers and negotiations inadmissible to prove validity/amount of claim; admissible for other purposes (bias, obstruction, prior inconsistent statement in criminal case)
- Rule 409 — offers to pay medical expenses inadmissible; accompanying statements NOT protected (unlike 408)
- Rule 410 — plea discussions with prosecutor and withdrawn guilty pleas inadmissible
- Rule 411 — liability insurance inadmissible to prove negligence; admissible for agency, ownership, control, bias
2
Character Evidence
Character Evidence in Civil & Criminal Cases — Rule 404
- Rule 404(a) — character evidence generally inadmissible to prove action in conformity; criminal defendant may open the door by offering pertinent character trait
- Prosecution may rebut defendant's character evidence; may also offer victim's character evidence after defendant opens door
- Rule 404(a)(2)(B) — homicide defendant who claims self-defense opens door to victim's peacefulness
- Civil cases — character evidence to prove propensity almost never admissible
Prior Acts — Rule 404(b)
- Not admissible to prove character/propensity — admissible for MIMIC purposes: Motive, Intent, absence of Mistake, Identity, Common plan/scheme
- Prosecution must give reasonable notice in criminal cases before trial of intent to use 404(b) evidence
- Must still pass Rule 403 balancing — prior acts evidence requires sufficient proof the act occurred
- Huddleston standard — jury could reasonably find prior act occurred by preponderance
Character Evidence in Sex Offense Cases — Rules 412-415
- Rule 412 (Rape Shield) — victim's prior sexual behavior/predisposition generally inadmissible; exceptions: source of physical evidence, prior acts with accused (consent), constitutionally required
- Rule 413 — in sexual assault cases, defendant's prior sexual assault offenses admissible for any purpose
- Rule 414 — same as 413 for child molestation cases
- Rule 415 — extends Rules 413-414 to civil cases involving sexual assault or child molestation
Habit & Routine Practice — Rule 406
- Habit — semi-automatic, specific, regular response to particular situation; admissible to prove conformity
- Routine practice of organization — admissible regardless of corroboration or eyewitness
- Distinguished from character — habit is specific and regular; character is general disposition
3
Hearsay
Definition & Not Hearsay — Rules 801-802
- Hearsay — out-of-court statement offered to prove truth of the matter asserted (Rule 801(a)-(c))
- Not hearsay if offered for non-truth purpose — verbal acts (legally operative words), effect on listener, state of mind of declarant/listener, impeachment
- Prior inconsistent statement under oath (801(d)(1)(A)) — not hearsay; substantive evidence
- Prior consistent statement to rebut charge of recent fabrication (801(d)(1)(B)) — not hearsay
- Statement of identification (801(d)(1)(C)) — not hearsay
- Opposing party's statement (801(d)(2)) — not hearsay; includes individual, adoptive, authorized, agent, co-conspirator statements
Hearsay Exceptions — Declarant Availability Immaterial (Rule 803)
- Present sense impression (803(1)) — describing event while or immediately after perceiving it
- Excited utterance (803(2)) — relating to startling event while under stress of excitement
- Then-existing mental/emotional/physical condition (803(3)) — state of mind, intent, pain, suffering (Hillmon doctrine — intent to prove subsequent conduct)
- Medical diagnosis or treatment (803(4)) — statements for purpose of diagnosis/treatment; includes cause of injury if pertinent to treatment
- Recorded recollection (803(5)) — witness made/adopted when fresh; read to jury, not received as exhibit (unless offered by adverse party)
- Business records (803(6)) — regularly conducted activity; made at or near time by knowledgeable person; regular practice; trustworthy; foundation by custodian/qualified witness or certification
- Public records (803(8)) — office/agency activities, observed matters (law enforcement reports excluded in criminal cases against defendant as to observed matters), factual findings from investigations
Hearsay Exceptions — Declarant Unavailable (Rule 804)
- Unavailability defined — privilege, refusal, lack of memory, death/illness, absence beyond subpoena power; party procuring absence cannot invoke
- Former testimony (804(b)(1)) — given at prior proceeding; party against whom offered had opportunity and similar motive to examine
- Dying declaration (804(b)(2)) — believing death imminent, concerning cause/circumstances of believed impending death; civil and homicide cases only
- Statement against interest (804(b)(3)) — against proprietary, pecuniary, or penal interest; corroborating circumstances for statements against penal interest offered in criminal cases
- Statement of personal/family history (804(b)(4)) — birth, adoption, legitimacy, ancestry, marriage, relationship
Residual Exception & Confrontation Clause
- Rule 807 — residual exception: trustworthiness, material fact, probative, interests of justice, notice to adverse party
- Confrontation Clause (Crawford v. Washington) — testimonial hearsay inadmissible in criminal cases unless declarant unavailable and prior opportunity for cross-examination
- Testimonial — police interrogations (primary purpose is establishing past facts for prosecution), affidavits, prior testimony; non-testimonial — ongoing emergency statements (Davis v. Washington)
- Business and public records — generally non-testimonial unless created for litigation (Melendez-Diaz v. Massachusetts for lab certificates)
4
Impeachment
Methods of Impeachment
- Prior inconsistent statements — extrinsic evidence allowed only if witness given opportunity to explain (Rule 613(b)); collateral matter limitation
- Bias — always relevant; not explicitly covered by FRE but constitutionally required (right of confrontation)
- Character for truthfulness — Rule 608(a): opinion/reputation for untruthfulness; 608(b): specific instances on cross only, no extrinsic evidence
- Prior convictions — Rule 609: crimes of dishonesty automatically admissible (10-year limit); other felonies subject to 403 balancing (prosecution witnesses in criminal cases: probative must outweigh prejudice)
- Contradiction — showing witness's testimony is factually wrong on a relevant point
Rehabilitation & Limits
- Prior consistent statement — admissible to rebut charge of recent fabrication/improper influence (must predate motive to fabricate, Tome v. United States)
- Good character for truthfulness — only after character attacked (Rule 608(a))
- Collateral matter rule — cannot prove contradiction by extrinsic evidence on a collateral matter
- Rule 610 — religious beliefs inadmissible to impeach credibility
5
Privileges
Attorney-Client Privilege
- Communication between client and attorney (or agents), for purpose of seeking/providing legal advice, in confidence
- Survives death of client; held by client (not attorney)
- Crime-fraud exception — communications in furtherance of crime or fraud are not privileged
- Waiver — voluntary disclosure to third party; inadvertent disclosure may be clawed back under Rule 502(b)
- Work product — broader than privilege; covers litigation preparation materials; opinion work product receives near-absolute protection
Other Privileges
- Spousal testimonial privilege — married person cannot be compelled to testify against spouse in criminal case; held by testifying spouse (federal) or both (some states)
- Marital communications privilege — confidential communications during marriage are privileged; survives divorce; held by both spouses
- Physician-patient privilege — no federal common law privilege; recognized by many states; does not apply when patient puts condition at issue
- Psychotherapist-patient privilege — recognized federally (Jaffee v. Redmond); extends to licensed social workers
- Clergy-penitent privilege — confidential communications to clergy in professional capacity
6
Expert Testimony, Authentication & Best Evidence
Expert Testimony — Rule 702
- Daubert standard — judge as gatekeeper; expert testimony admissible if (1) sufficient facts/data, (2) reliable principles/methods, (3) reliably applied to the facts
- Daubert factors — testing, peer review, error rate, general acceptance (non-exclusive list)
- Kumho Tire — Daubert gatekeeping applies to all expert testimony, not just scientific
- Rule 703 — expert may rely on inadmissible facts/data if reasonably relied upon by experts in the field; cannot disclose otherwise inadmissible basis unless probative value substantially outweighs prejudice
- Rule 704 — expert may give opinion on ultimate issue; exception: mental state element of criminal defense (704(b))
Authentication — Rule 901
- Proponent must produce evidence sufficient to support a finding that the item is what it claims to be
- Methods — testimony of witness with knowledge, handwriting comparison (expert or jury), distinctive characteristics, voice identification, phone call authentication, ancient document (20+ years), process/system evidence
- Self-authenticating documents (Rule 902) — certified public records, official publications, newspapers, trade inscriptions, acknowledged documents, certified business records
Best Evidence Rule — Rules 1001-1008
- Original document required to prove content of writing, recording, or photograph (Rule 1002)
- Duplicate admissible unless genuine question of authenticity or unfairness (Rule 1003)
- Exceptions — original lost/destroyed (not by proponent in bad faith), unobtainable, collateral matters, public records (Rule 1004-1005)
- Does not apply when witness testifies from personal knowledge, not from the document's contents
7
Judicial Notice & Burdens of Proof
Judicial Notice — Rule 201
- Adjudicative facts — not subject to reasonable dispute; generally known within jurisdiction or accurately determinable from reliable sources
- Mandatory if requested and proper basis established; permissive if court determines on its own
- Civil cases — jury instructed to accept as conclusive; criminal cases — jury instructed they may but are not required to accept (protects right to jury trial)
Burdens
- Burden of production — duty to present sufficient evidence to create jury question
- Burden of persuasion — standard of proof required to prevail (preponderance, clear and convincing, beyond reasonable doubt)
- Presumptions in civil cases (Rule 301) — shifts burden of production, not burden of persuasion (Thayer/bursting bubble approach)
Outlining Tips for Evidence
Build a hearsay flowchart: (1) Is it a statement? (2) Out of court? (3) Offered for truth? (4) Does an exclusion apply (801(d))? (5) Does an exception apply (803, 804, 807)?
Memorize the hearsay exceptions by grouping — 803 exceptions based on reliability guarantees (contemporaneity, business duty, official duty), 804 exceptions require unavailability
For character evidence, always ask two questions: What is the purpose? And who is offering it? The answer depends on whether it is a civil or criminal case and which party acts first
Create a 404(b) MIMIC checklist and practice identifying the non-propensity purpose in each fact pattern — courts will exclude 404(b) evidence that is really disguised propensity evidence
Pay special attention to the Confrontation Clause — Crawford changed the landscape and professors love testing the testimonial vs. non-testimonial distinction
Know the impeachment rules by method — prior inconsistent statements, bias, character for truthfulness, convictions, and contradiction each have different procedural requirements
Practice applying Rule 403 balancing throughout your outline — it acts as a safety valve that applies to almost every category of evidence
Recommended Length
40-55 pages
A thorough Evidence outline typically runs 40-55 pages and covers all 7 major sections with key rules, leading cases, and professor-specific notes. Start with this template and expand each section with your class notes, case briefs, and hypotheticals from lecture.