General
•Foundational elements must usually be proven to a judge by a preponderance of the evidence
•Always look to relevance and unfair prejudice.
•Rule 612: Refreshing recollection (not introduced into evidence).
Relevance
•Remember, always check for relevance!
•Rule 401: having tendency to make the existence of a fact that it is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
•Rule 402: relevant evidence is admissible, other evidence is not admissible.
•Rule 104: can be admitted conditionally to fulfillment of other fact.
•104(a): judge decides whether evidence is admissible by preponderance of the evidence
•104(b): some questions of fact go to jury, e.g., personal knowledge or authenticity; foundation must present sufficient evidence that a jury could find foundation sufficient.
Hearsay
•Big Picture: What's the problem with hearsay?
•Rule protects right of cross-examination
•Adds safeguard of oath (by promoting live testimony)
•Allows jury to see witness' demeanor
•Criminal cases: constitutional underpinnings
•Dangers: perception, memory, narration, veracity
•Must be assertive conduct
•Bootstrapping: hearsay can be used in proving foundational elements.
•Rule 801: Definitions (out of court statement to prove the truth of matter asserted).
•Not hearsay if declarant is testifying and:
•inconsistent with prior sworn testimony (801(d)) (for truth of matter asserted)
•consistent with testimony, to rebut motive to lie (for truth of matter asserted)
•must be prior to motive to fabricate, Tome
•identification of a person after perceiving the person (for truth)
•admissions against party (because party can explain them)
•party's own statement
•statement that party has manifested belief/adoption
•statement by someone authorized to speak for party
•statement by agent or servant within scope of employment
•statement by co-conspirator during course of/furtherance of conspiracy
•Rule 802: No hearsay admitted except exceptions.
•Rule 803: hearsay exceptions, declarant availability immaterial. Thought to be trustworthy for various reasons (some of them folklore).  Circumstantial evidence can be used to prove foundational elements, but the statements themselves can sometimes be sufficient.
•(1) Present sense impression: must be describing event/condition as it happens.  Limited to description of event, contemporaneity.
•(2) Excited utterance: must still be under stress/excitement, but doesn't need to be contemporaneous.  Must only relate to event.
•(3) Then existing mental/physical/emotional condition. Special case of (1), founded on contemporaneity. Hillmon: can include intent to prove that a person did something; intent is part of state of mind. Annunziato: can include “alloy” with the “metal”, “He asked for money for bridge, so I'm going to send $.” Pheaster: can include closely related facts about other's conduct (controversial)., but House Report says should only be used to prove declarant's future conduct.
•(4) Medical Treatment or Diagnosis: not restricted just to doctors.
•(5) Past recollection recorded: can be read into evidence but not introduced as evidence, unless by adverse party. Declarant has to testify to accuracy.
•(6), (7) Business records: regularly conducted business activity, can be opinion, sources should have duty to be accurate. Any business qualifies—including police, labor union, etc..  Absence of record is also admissible.  But source must be someone with duty to be accurate.  Also, statements within records that would be admissible under other exceptions are admissible here.
•(8)-(10) Public Records: Police reports/investigations cannot be used against criminal defendant. Opinions qualify under “findings of fact.”
•Rule 804: Declarant Unavailable
•(a) Unavailability
•(b)(1) Former testimony: must have had similar motive/opportunity to cross-exam. In civil cases, predecessor in interest does not necessarily have to be in privity.
•(b)(2) Dying Declarations: declarant need not actually die, just believe death is imminent; declaration must concern circumstances of death. Admissible in criminal cases against defendant only in case of homicide.
•(b)(3) Statements against interest: collateral non-inculpatory (or exclupatory) statements are generally not admissible.
•Rule 807: Residual Hearsay
•Comparable circumstantial guarantees of trustworthiness to 803/804
•Notice to adverse party
•Offered as evidence of material fact
•More probative than any other evidence from reasonable efforts
•Justice
•“Near-miss argument”: usually not accepted
•Needs to be intrinsically reliable—can't use corrobating evidence to establish reliability
Constitutional Issues - 6th Amendment
•Right to confront witnesses
•Applies only in criminal cases:
•Right to be present at trial
•Right to cross-examine witnesses
•To survive confrontation clause:
•Witness must be unavailable (sometimes, but not always)
•Testimony must have indicia of reliability
•Reliability must be from circumstances of out-of-court testimony, not from extrinsic evidence.
•“Firmly-rooted” hearsay exceptions satisfy reliability requirement.
•Residual hearsay exception does not satisfy reliability requirement.
Impeachment
•Rule 601: Competency
•Rule 602: Personal knowledge (exception 703 expert testimony)
•Rule 605-606: Judge and jurors aren't competent
•Rule 607: Any party can impeach, including their own witness.
•Bias (can use extrinsic evidence, never collateral issue)
•Defect in sensory or mental capacity
•Rule 608: Opinion, reputation as to truthfulness admissible; specific instances of conduct only on cross-examination.
•Prior bad acts (for truthfulness only)--should ask about acts, not whether person was arrested/convicted—no extrinsic evidence
•Prior inconsistent statements, contradictory evidence
•Rule 609: Past convictions
•For accused, only if punishable by death/one year imprisonment, and probative value outweighs prejudicial effect
•For witness, must be crime of dishonesty or false statements
•Ten year limit, from date of conviction or date of release (whichever is later)
•Rule 611: Cross-examination must be limited to direct-examination and matters of credibility; no leading questions except to develop testimony or on cross.
•Rule 612: Refresh memory with writing (adverse party can view)
Character Evidence
•Big issues: why exclude?
•Low probative value to conduct on one occasion
•Likely to be weighed too heavily by jury
•Very prejudicial
•Person should be tried on what they did, not who they are
•Can cause 'mini-trials'
•Rule 404: Character evidence generally inadmissible, except:
•(a)(1) Evidence of pertinent trait of character offered by accused, or prosecution to rebut (or evidence of same trait of character in ACCUSED as offered by accused about VICTIM under (a)(2)). “Mercy rule”, “opens the door”.
•(a)(2) character of victim by accused, or rebuttal; or evidence of peacefulness in victim of homicide to rebut evidence that victim was aggressor.
•(a)(3) witness impeachment—607-609 
•(b) specifics acts; not admissible to show conformity, but could be admitted for other purposes, subject to notice.
•e.g., motive, opportunity, etc..
•admitted if 'sufficient to support finding by jury'
•Rule 405: How to prove character
•(a) Reputation or Opinion; specific instances only on cross-examination
•(b) Specific instances when character trait is essential element of charge, claim, defense.
•e.g., entrapment, habitual offender, ex-felon is possession (criminal)
•negligent entrustment, defamation, wrongful death, child custody (civil)
•Rule 406: Habit
•Generally admissible, must be specific, regular, somewhat automatic or unreflective
•Rule 412: Rape Shield
•(a)(1) can't admit alleged victim's other sexual behavior
•(a)(2) can't admit alleged victim's sexual predisposition
•(b)(1)(a) admissible to prove person other than accused was source of physical evidence
•(b)(1)(b) sexual conduct with accused, to prove consent (or by prosecution)
•(b)(1)(c) constitutional protection.
•(b)(2)  in civil case, if probative value substantially outweighs danger of harm to victim or unfair prejudice; reputation admissible only if it has been placed into controversy by victim.
•Rule 413-415: Similar Crimes in Sexual Assault
•Past sexual offenses admissible when relevant.
•413: sexual assault, 414: child molestation, 415 civil cases
•Probably subject to 403 unfair prejudice, but does not say so in text of rules