Attack outline
Evidence Essay Attack
Review the Evidence Essay Attack with ordered issue-spotting steps and Florida flags where relevant before you jump back into practice.
On this page
Ordered attack steps
- Does the item make a fact of consequence more or less probable? (FRE 401)
- If irrelevant, full stop — exclude under FRE 402
- Even if relevant, run the FRE 403 balance: substantially outweighed by unfair prejudice, confusion, misleading the jury, delay, waste, or cumulativeness?
- FRE 403 favors admissibility — the word is SUBSTANTIALLY, not merely
- FRE 601 baseline competence (FL: § 90.601 — capacity to perceive, remember, communicate, understand oath)
- FRE 602 personal knowledge for lay testimony
- FRE 603 oath or affirmation
- FRE 605 judge cannot testify in the case being tried
- FRE 606 juror cannot testify before that jury
- Default: character cannot be used to prove propensity (FRE 404(a))
- Criminal defendant may open the door with a pertinent trait; prosecution may then rebut
- FRE 404(b) MIMIC uses: Motive, Intent, Mistake (absence), Identity, Common plan — plus knowledge, opportunity, preparation
- FRE 413-415: prior acts of sexual assault or child molestation admissible for propensity in those specific cases
- FRE 406 habit/routine practice (specific, repeated, semi-automatic) admissible without character analysis
- Is there an out-of-court statement? (oral, written, or assertive conduct)
- Is it offered for the truth of the matter asserted?
- Non-hearsay purposes to flag: effect on listener, notice, verbal act/legal effect, state of mind circumstantially, impeachment
- If hearsay, run the FRE 801(d) exclusions FIRST (prior inconsistent under oath, prior consistent rebutting recent fabrication, prior ID, opposing-party statements)
- Present sense impression (803(1)) and excited utterance (803(2))
- Then-existing state of mind/condition (803(3)) — Hillmon doctrine for future intent
- Statement for medical diagnosis or treatment (803(4))
- Recorded recollection (803(5)) — read, do not exhibit
- Business records (803(6)) and absence of business record (803(7))
- Public records (803(8)) — criminal-case carve-out for police observations
- Learned treatise (803(18)) and judgment of prior conviction (803(22))
- Confirm unavailability (privilege, refusal, no memory, death/illness, absence) — proponent cannot have procured it
- Former testimony (804(b)(1)) — opportunity + similar motive to develop
- Dying declaration (804(b)(2)) — federal: homicide prosecutions + civil cases only (state codes often broader; check your state outline)
- Statement against interest (804(b)(3)) — post-2024 amendment: corroborating circumstances clearly indicating trustworthiness required for ANY statement offered in a criminal case that tends to expose the declarant to criminal liability (for OR against the accused); court weighs totality of circumstances and any supporting OR undermining evidence
- Forfeiture by wrongdoing (804(b)(6)) — Giles intent requirement; also defeats Confrontation Clause
- Residual (FRE 807) as a catch-all only with trustworthiness equivalence + notice
- Crawford v. Washington: testimonial hearsay barred unless declarant unavailable AND prior cross-examination
- Davis v. Washington primary-purpose test: ongoing emergency = non-testimonial; resolved + producing trial evidence = testimonial
- Melendez-Diaz: lab certificates are testimonial; Bullcoming: surrogate analyst cannot substitute
- Forfeiture by wrongdoing (804(b)(6)) also forfeits Confrontation Clause objection (Giles intent)
- No Confrontation Clause issue in civil cases or against the government
- Anyone may impeach any witness (FRE 607)
- Character for truthfulness — opinion/reputation (FRE 608(a)) — bolstering only after attack
- Specific bad acts probative of truthfulness (FRE 608(b)) — cross only, stuck with the answer
- Prior convictions (FRE 609) — felonies (reverse-403 for the accused) and dishonesty crimes (auto)
- Prior inconsistent statement (FRE 613) — opportunity to explain or deny; if under oath at a trial, hearing, other proceeding, or deposition, also substantive under FRE 801(d)(1)(A) (state codes often broader — see your state outline)
- Bias, interest, motive — always relevant, never collateral
- Attorney-client + work product — client holds; crime-fraud exception destroys
- Spousal: federal recognizes TESTIMONIAL privilege (witness-spouse holds, criminal cases) + MARITAL COMMUNICATIONS (survives divorce, both hold)
- Physician-patient is a state-law privilege; federal common law does not recognize a general doctor-patient privilege in federal-question cases
- Psychotherapist-patient (Jaffee v. Redmond — federal common law, includes licensed social workers)
- Clergy-penitent — recognized in all 50 states
- State evidence codes often add, expand, or narrow these privileges — consult your state outline
- Lay opinion (FRE 701) — rationally based on perception, helpful, not specialized
- Expert qualification (FRE 702) — DAUBERT gatekeeping; many states track Daubert today though specific adoption history varies
- Daubert factors: testability, peer review, error rate, general acceptance, reliable application to facts
- Basis of expert opinion (FRE 703) — may rely on otherwise-inadmissible facts of the type experts in the field reasonably rely upon; reverse-403 to disclose to jury
- Ultimate-issue rule (FRE 704) — generally OK, except mens rea in criminal cases (704(b))
- Authentication (FRE 901): prima facie showing — witness with knowledge, distinctive characteristics, voice/handwriting, public record certification
- Self-authentication (FRE 902) — public seals, certified copies, official publications, newspapers, commercial paper, certified electronic records (902(13)/(14))
- Best evidence (FRE 1002): originals required to prove the CONTENTS of writings, recordings, photographs
- Duplicates (FRE 1003) admissible unless authenticity disputed or unfair
- Excusing the original (FRE 1004): lost or destroyed without bad faith, unobtainable by process, opponent controls and fails to produce, or collateral
- FRE 105 limiting instruction — request when evidence is admissible for one purpose but not another
- FRE 106 rule of completeness — 2023 amendment now covers oral statements and overrides hearsay objections to completing portions
- FRE 403 cleanup — second look after admission for any unfair-prejudice cure
- Preservation: object specifically + state grounds; offer of proof for excluded evidence (FRE 103)