Checklists

Question 1

Hearsay Checklist

Answer 1

1. Apply the definition:
   (a) Out of Court?
   (b) Statement?
   (c) for TOMA?
2. Look for forbidden inferences

Another version:

1. Is it hearsay (for the TOMA)?
2. Is it offered in a criminal case against a criminal D, and the declarant is not either present of XX or an opposing party?

– if criminal case, no XX, and not OP, then you can have Crawford issue. But must ask if it is testimonial or not. If testimonial, you can get out of it if it is still a dying declaration, prior testimony, or Giles (forfeiture).

3. Does FRE admit it?
   - - As 801(d) “not hearsay”?
   - - As 803 where declarant’s availability is immaterial?
   - - As 804 exception if declarant shown unavailable? [This is harder than 801/803, so you don’t want to go here first]
   - -As residual exception? [Remember 5 foundational requirements]

Question 2

Confrontation Clause Checklist

Answer 2

1. Is it offered in a criminal case against a criminal D, and the declarant is not either present of XX or an opposing party?
2. Testimonial or not?
3. If testimonial, is it dying declaration, prior testimony, or forfeiture?