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Is it relevant? 401: any tendancy 402: presumption of admissibility 403: prejudice balancing test "A brick is not a wall" YES Is it hearsay? 801(c): out of court statement offered to prove the truth of the matter asserted? YES 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 NO 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? NO Is it an exclusion by admission NO NO YES YES Inadmissible Admissible Admissible, possible limited instruction, 105 Inadmissible unless 804(b)(6)