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Santa Clara University School of Law
Uelman, Gerald F.

FALL 2012
1)      Relevance: 
a)      FRE §402/CEC 351: All relevant evidence is admissible (subject to a few exceptions)
i)     In CA, only evidence that goes to a disputed issue is relevant
ii)    CA Prop 8 exceptions (criminal cases): (1) Required by US Constitution, (2) legislative enactment (3) Rules relating to privilege (4) Rules relating to hearsay (5) Section 352 balancing (6) Rape shield (782, 1103) (7) rights of press
b)      FRE §401/CEC 210: Relevance defined: evidence making the existence of any fact of consequence (materiality) more or less likely (probative)
i)     Probative effect: United States v. James:  Although victim, claiming self-defense, did not know of aggressor’s history of violence, the fact that he had the history made more likely victim’s belief that she was in immediate harm
2)      Conditional Relevance:  An item of evidence, by itself, is not relevant, but would be if jury had other information.  Defendant’s ownership of a red hat probably (proffered evidence) not relevant, unless someone saw murderer wearing a red hat (preliminary fact).  Test for conditional relevance: If conditional, proffered evidence (step 1 below) will seem to the jury to have nothing to do with the case
a)      Procedure: Test (huddleston): Proponent produce sufficient evidence that the jury could reasonably find by a preponderance of evidence that the fact exists.
i)     Judge admits proffered evidence, unless it has to do with privilege (FRE §104(a)/405); can bootstrap in FED but not CA. Note:  This step usually done out of presence of jury (FRE §104(c),CEC 402)
ii)    Jury asked whether preliminary fact exists.  If not, proffered evidence not presented to jury. FRE §104(b)/403;
3)      Exclusions of relevant evidence
a)      Discretionary balance: FRE §403/CEC 352:  Judge may exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
i)     Example: Example of acceptable evidence:  Accused, while running towards victim, said “I’m gonna break your arm.” Unacceptable evidence:  “I’m gonna break your arm because I belong to a cult that extols violence”
ii)    Court must admit less prejudicial evidence to the same effect
(1)   Stipulation as an example (extending Old Chief):  D willing to stipulate that he possessed child porn, as his defense was that he didn’t know it was child porn. P refused the stipulation.  Since the stipulation was a less-prejudicial alternative to actually showing the jury the porn tapes, judge should have compelled P to stipulate
iii)   Common fact patterns:
(1)   Probability Evidence: People v. Collins:  Statistical evidence based on concurrent of factors matching the defendants’ description was too prejudicial, because at best it served to state the probability that any given couple would embody all those traits, but bore no relevance on the actual issue of guilt.
(2)   Effect of Stipulations:
(a)   Old Chief v. United States (1997):  court must accept a stipulation that D, charged with possession-of-firearm-by-a-convicted-felon, is a convicted felon
(b)   CA: CA Constitution Art.1 §28(f): When a prior felony conviction is an element of a felony offense, it shall be proven in open court.  Limited by Valentine:  evidence is limited to proof of fact of conviction, not its nature.
(3)   Photos and Other Inflammatory Evidence
(a)   State v. Bocharski (2001) p.40
(i)     Did the possible prejudicial effect that photographs of a murder victim’s empty skull with a metal bar protruding from it outweigh the probative value of the photos?  Although the photos were relevant, the cause or manner of death were not contested, the pictures had only the most minimal probative value and could only have been introduced for the purpose of inflaming the jury, therefore they were improperly admitted. [court went on to find that despite their improper admission, they did not in fact sway the jury, so conviction upheld] (b)   United States v. James (1999) p.44
(i)     Excerpt of dissenting opinion.  Although evidence of the boyfriend’s police record were relevant and corroborative and tended to support a finding of self-defense, they were unnecessary to the finding, unrelated to her actual knowledge at the time, a prejudicial in that they portrayed the victim as being “worthy of killing”, and were therefore properly excluded.
(4)   Evidence of Flight
(a)   United States v. Myers (1978) p48
(i)     Probative value of evidence of flight as circumstantial evidence depends upon the degree of confidence with which four inferences can be drawn:
1.      from the D’s behavior to flight (that D’s behavior constitutes actual flight)
2.      from flight to consciousness of guilt
3.      from consciousness of guilt to consciousness of guilt concerning the crime charged and
4.      from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
(ii)   Because D’s consciousness of guilt may have gone to either of two bank robberies, jury could not possibly infer consciousness of guilt of one of them.  Therefore, prong 4 fails, and the flight instruction should not have been given, because such evidence in inherently unreliable, has prejudicial effect and should only be used if reasonable support for all four prongs is furnished.
b)      Specialized Relevance Rules (see table on page 27 of E & E)
i)     In general:  Unlike character evidence, these do NOT have to do with unfair prejudice; have to do with public policy concerns. 
ii)    These rules are abrogated by PROP 8  -> IN CA criminal case, these rules have no effect (i.e. evidence admissible)
iii)   FRE 606(b)/CEC 1150 – Competency of Juror as Witness
(1)   A juror may not serve as a witness.  Policy:  Want jurors to make frank and private deliberations
(a)   Exceptions:
(i)     Tanner: Extraneous evidence:  “outside” influence
(ii)   Mistakes in verdict form
(b)   CA vs. Fed
(i)     Fed:  Excludes all evidence Re what happened in jury room
(ii)   CA (civil): Allows jury room evidence, but not to show its “effect” on any juror member (Prop 8 vitiates this limitation) 
iv)   FRE §407/CEC 1151 – Subsequent Remedial Measures
(1)   Plaintiff cannot introduce, to show negligence or product defect/design(can introduce in CA), Defendant’s subsequent (to harm suffered) repair.  Policy: Want to encourage Ds to make repairs that benefit the safety of society at large
(a)   Exceptions:
(i)     Impeachment purposes
(ii)   If controverted:  (1) ownership, (2) control, and (3) feasibility of alternatives
1.      Feasibility and impeachment:  Tuer:
a.       Feasibility: Doctor chose safer (in his opinion) of two possible procedures; the other later made standard procedure (remedial measure was the change).  Since he didn’t controvert the feasibility of the unelected procedure(he merely made a “judgment call”) it was NOT admissible
b.      Impeachment:  Changing hospital procedure inadmissible to impeach Doctor’s testimony that he felt he made the appropriate judgment call, because that form of reevaluation was precisely what

i)     D’s witness offers R/O of his pertinent trait (FRE 404(a)(2)(A)/CEC 1102(a))
(ii)   P may cross-exam with “have you heard” on same witness (405(a)/1102(a))
(iii)  P may introduce their own witnesses for R/O of accused’s pertinent trait (404(a)(2)(A)/CEC 1102(a))
(b)   D “opens door” Re non-rape victim’s bad trait
(i)     D’s witness offers R/O/SA(CA) of victim’s pertinent trait (FRE 404(a)(2)(B)/CEC 1103(a))
(ii)   P may cross-exam with “have you heard” on same witness (405(a)/1103)
(iii)  P may introduce their own witnesses for R/O/SA(CA) of victim’s pertinent trait (404(a)/CEC 1103)
(iv)  P may introduce witnesses for R/O/SA(CA) of same trait of accused(FRE 404(a)(2)(B)(ii)/CEC 1103(b)
(c)   Prosecutor offers evidence Re aggressor in homicide (FED only, 404(a)(2)(C)) [does not require “D” to open door in FED, but does in CA] (i)     Prosecutor introduces witness for R/O testimony to rebut evidence that victim was aggressor
(d)   D offers evidence of rape victim’s consent [rape shield] (i)     Civil:
1.      FED (412(b)(2): SA only admissible if
a.       (1) probative value substantially outweighs… (thumb on other side) AND
b.      (2) controverted by victim
2.      CA (1106):  R/O/SA only admissible if:
a.       (1) to prove victim consented previously to sex with defendant or (2) injury to victim Re loss of consortium
i.        If evidence offered by prosecution, defendant may cross witness and offer own witnesses
(ii)   Criminal (FRE 412(b)(1)/CEC 1103(c)):
1.      FED:  SA evidence of victim’s sexual activities admissible only if (1) to prove victim consented previously to sex with defendant (can be offered by defendant only) or (2) to show semen/injury someone other than defendant
2.      CA:  Same as civil, except loss of consortium replaced with various penal code exceptions
(e)   Evidence of sex crimes (need not be conviction)
(i)     Civil:  Fed only (FRE 415(a)):  Evidence of accused’s comission of sexual assault or child molest is admissible
(ii)   Criminal
1.      FED: 
a.      413:  If charge with sexual assault against adult: Evidence of accused’s commission of sexual assault admissible, but not non-assaultive evidence (unlike CA)
b.      414:  If charged with assaultive or non-assaultive child sex crime:  Evidence of accused’s commission of child molest admissible.  This includes evidence of non-assaultive crimes (sexual exploitation, selling/buying children, child porn)
2.      CA:
a.       1108:  If charged with assaultive or non-assaultive sexual crime against anyone:  Can admit ALL assaultive and non-assaultive sexual crimes against anyone (much more liberal)
(f)    Evidence if charged with Domestic violence (need not be conviction)
(i)     CA only (1109):  If charged with domestic violence, evidence of abuse against current/former partners, children, elders is admissible if not more than 10 years old