Evidence Templates
The writing templates of this subject are presented in the following outline. The outline prioritizes practicality, offering context to clarify the relationships between templates and provide a clear framework.
Evidence Attributes
When evidence is offered, challenges to admissibility may arise based on: (1) type—whether the evidence is character, habit, hearsay, or opinion; (2) form—whether it is testimonial or tangible (physical, documentary, or demonstrative); (3) privilege applicability; or (4) source, i.e., the witness presenting the evidence. Additionally, the type of case (civil or criminal) may influence the standard for admissibility.
At the outset of any analysis, it is helpful to identify the evidence’s type, form, privilege applicability, and source, as well as the type of case.
- Evidence Attributes
Evidence in General
In general, any evidence may be excluded if it is (1) irrelevant or (2) its probative value is substantially outweighed by concerns of prejudice or efficiency.
Further, evidence of the following specific acts may be excluded as a matter of policy.
Character Evidence
When the evidence at issue is character evidence, the standard of admissibility depends on whether it is used for (1) substantive or (2) impeachment purposes. If used for substantive purposes, the standard of admissibility varies for (1a) civil and (1b) criminal cases.
Habit Evidence
When the evidence at issue is habit evidence, analyze using the following analysis:
- Habit
Tangible Evidence
When the evidence at issue is tangible, its admissibility may be challenged on the following grounds:
- Lack of Authentication
- Not the Best Evidence
- Barred by Parol Evidence Rule
Witnesses
When the source of the evidence is a witness, the admissibility of their testimony may be challenged on the following grounds:
- Incompetency
- Improper Recollection Assistance
- Improper Opinion Testimony
When the evidence is offered to impeach a witness, the admissibility of the evidence may be analyzed with the following analysis:
- Witness Impeachment
Privileges
When the source of the evidence is a witness with one of the following confidential relationships with the defendant, the admissibility of their testimony may be analyzed as demonstrated:
- Spouse
- Attorney-Client
- Physician-Patient
- Psychotherapist-Patient
When the source of the evidence is a journalist or government, the admissibility of their testimony may be analyzed as demonstrated:
- Journalist
- Government
When the source of the evidence is the defendant, the admissibility of their testimony may be analyzed as demonstrated:
- Self-Incrimination
Hearsay
Is the evidence hearsay?
- Hearsay
Evidence that is hearsay is inadmissible unless a hearsay exception applies. Some of the exceptions can only be used if the declarant is unavailable.
- Declarant Availability
Exceptions Requiring the Declarant is Unavailable:
- Former Testimony
- Dying Declaration
- Statement against interest
- Statement of personal or family history
- Statement against a party that caused the declarant’s unavailability
Exceptions Not Requiring the Declarant is Unavailable:
- Present sense impression
- Excited utterance
- Statement of mental, emotional, or physical condition
- Statement made for medical diagnosis or treatment
- Recorded Recollection
- Business records
- Public Records
- Learned treatises
- Judgment of previous conviction
- Residual Exception
Does the exempted (admissible) hearsay violate the confrontation clause?
- Confrontation Clause
Do any of the applied hearsay rules violate the due process clause?
- Due Process Clause
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