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Is it relevant?
401: any tendancy
402: presumption of admissibility
403: prejudice balancing test
"A brick is not a wall"
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YES
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Is it hearsay?
801(c): out of court statement offered to prove the truth of the matter asserted?
|
YES
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Is there a non-hearsay use?
(1) Objective effect (effect on hearer, verbal act, verbal part of an act, explains conduct)
(2) State of mind (demonstrations not assertions)
(3) W's out of court statement, 801(d)
(4) non-verbal conduct that is not intented to communicate or is ambigious, 801(a)(2)
(5) implied assertion, ambiguous; many other possible inferences
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NO
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Does it violate the Confrontation Clause?
Testimonial (made by or to a known state actor for the purpose of collecting evidence) and D cannot cross witness?
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NO
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Is it an exclusion by admission
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Hearsay Flow Chart
