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Santa Clara University School of Law
Uelman, Gerald F.




A. Introduction:

1. Generally: scheme of evidence addresses either relevance or reliability of info

a. relevance: rules of relevance focus on issue/guard against distraction

b. reliability: ensures evidence jury hears is as good as it purports to be

2. Evidence (CEC 140): things presented to the senses offered to prove non/existence of a fact. Includes:

a. testimony: oral answers to questions posed to witnesses who appear in ctroom (attys can’t testify)

b. writing: means of recording on tangible thing any form of communication/representation(photo/email)

c. material objects: e.g., weapon, glove, drop of blood

d. other things presented to the senses: e.g., physical appearance of person

3. Evidence-Related Terms:

a. direct evidence: leads to finding of fact w/out drawing inference(eyewitness evidence)

b. circumstantial: relies on inferences from other facts; look at connection btwn facts(sperm/thumbprint)

c. proof (CEC 190): the establishment by evidence of a requisite degree of belief concerning a fact

d. preliminary fact (CEC 400): factual prereq req’d before admission of evidence(decided by judge/jury)

e. competency of jurors (CA Civ Pro 198): in possession of natural faculties; not incompetent bc of loss of sight/hearing or other disability affecting mobility

i. jury view: enable jury to observe crime scene where physical environment is issue(walk thru home)

f. limiting instruction (FRE 105/CEC 355): where evidence admitted to prove a particular fact/party, but

not admissible for different purpose/party, jury instructed as to restricted use to make of evidence

g. objection: excludes inadmissible evidence; must be timely made & must state specific legal grounds

i. offer of proof(F103(a)(2)/C354): used to show prejudice & required for objection to be sustained/ found improper- must inform trial judge of substance, purpose& relevance of anticipated answer

ii. waived (F103/C353): if objection not made, it’s waived& admission can’t be challenged on appeal

iii. motion to strike (C353): allowed if no opportunity to object in advance

iv. motion in limine: used to raise objection in advance, outside jury presence

v. on appeal: sustained objection may only be considered if shown prejudicial

3. Relevant Evidence-RE: accompany relevance objection w/ §352/§403 probative/prejudice objection

a. Generally: what inferences to draw from evidence & why inferences are relevant to case

i. D charged w/ shoplifting after running: objects to running away(infers consciousness of guilt)

(1)knowing he ran away makes it more likely he had an intent to steal(has probative value)

(2)bc intent is an element of shoplifting, Ds objection is overruled(material)

b. Test for Relevance (FRE 401/CEC 210): any tendency to make fact more or less probable?

i. Probative: does evidence tend to make fact more/less probable than it would be w/out evidence; &

*CEC requires fact be disputed & probativeness of W credibility/hearsay declarant is relevant

•US v. James: D may testify about V boasting to show her fear& bring in doc of Vs prior stabbing crimes bc went to Ds credibility& corroborates story that V more likely to boast about violence.

ii. Material: does evidence bear on a fact of consequence in determining the action(what issues are at stake in case/look to substantive law)? If no à inadmissible

•Strict Liability crimes: intent is immaterial & thus, irrelevant bc not element of crime(MJ ex.)

•Padilla Cruz: D(illegal alien) charged w/ intent to distribute. Illegal immigrant status not relevant to credibility(liar) affecting consequence of action bc lying is not element of intent to distribute

•Voluntary intoxication: if§ says it may not be considered in determining mental state, &mental state is an element of crime, D cannot present evidence of intoxication for deliberate homicide.

c. Admissibility of Relevant Evidence:

i. FRE 402: relevant evidence is admissible unless otherwise by US Const; Fed§; FRE; USSC rules

ii. CEC 350: only relevant evidence is admissible

iii. CEC 351: except otherwise by statute, all relevant evidence is admissible

d. RE in Crim v. Civ Cases: affects parties ability to directly control what is relevant evidence

i. in criminal case: can only admit all allegations or none; D can stipulate, but P can insist evidence be admitted(OJ autopsy pics); cts refuse to intrude on what to bring in & usually let P use it

ii. in civil case: can admit/deny some/each allegation

•Fuentes: D admitted to striking kids w/ car & only issue is damages thus, evidence of Ds intoxication/throwing kids is immaterial(may have been relevant for punatives).

e. RE to Stipulate Prior Conviction v. Existing Evidence:

i. Old Chief(USSC): judge must accept a stipulation that D(charged w/ possession of firearm by felon) is a convicted felon & error for ct to allow P to prove nature of felony conviction.

ii. Hall & Valentine(CA): Ds may stipulate; P limited to proof of fact of conviction, not its nature

f. Relevant Evidence for Guilt v. Sentencing:

i. Spencer v TX: USSC upheld procedure where jury decided sentence1 &guilt2 at same time even tho some evidence only relevant to 1 bc instructed not to consider 1 evidence when deciding 2.

ii. Castro(CASC): admission of irrelevant evidence on issue of guilt violates D due process right.

g. Standard of relevance: significant in seeking pretrial discovery bc appeals can’t reverse trial ct’s grant

4. Proposition 8: prohibits relevant evidence from being excluded in crim cases in CA w/ 7 exemptions…

a. US Constitution: requires exclusion of evidence

b. Legislative enactment by 2/3: includes exclusionary§ for… secondary evidence; polygraph; character

c. Privilege rules of evidence: all privileges exclude relevant evidence, but are exempt from Prop 8

d. Hearsay rules: CEC 1200 excludes relevant evidence, but exempts evidence from Prop 8

e. CEC 352: discretion of trial judge to exclude relevant evidence if probative outweighed by prejudice

f. CEC 782 & 1103: CA rape shield law- exempt from Prop 8 even though it excludes relevant evidence

g. Rights of the press(Prop 5): ct can’t hold reporter in contempt for refusing to disclose source’s identity

B. Preliminary Questions: all prelimQ resolved by ct unless relevance of ev depends on whether fact exists

1. Preliminary Questions: ct[judge] decides any preliminary question about whether witness is qualified, a privilege exists, or evidence is admissible[most hearsay exceptions], by preponderance of evidence.

a. FRE 104(a): ct not bound by evidence rules, except those on privilege(judge can bootstrap)

b. CEC 405: doesn’t allow bootstrapping

c. FRE 104(c)/CEC 402(b): Ct must conduct hearing so jury can’t hear on prelim question if: involves admissibility of confession, D in crim case is a witness & requests, or if justice requires

d. FRE 104(d): crim D may testify to prelim question w/out being subject to cross on other issues

2. Conditional Relevance: when relevancy of evidence depends on fulfillment of a condition of fact, ct admits upon introduction of proof sufficient to support a finding that fact exists. Ct then instruct jury decide whether prelim fact exists& disregard evidence unless jury finds fact exists; no bootstrap

a. FRE 104(b): after judge finds ‘sufficient evidence here for jury to support a finding that prelim fact exists,’ hands to jury to decide by PoE; but party admission hearsay elements decided by judge

b. CEC 403: after judge finds ‘sufficient evidence here for jury to support a finding that prelim fact exists,’ hands to jury to decide; party admission elements treated as conditional relevance for jury:

(i)authorized admission(party authorized another to make statement); (ii)statement of agent (statement w/in scope of agent’s employment) & (iii)co-conspirator(in furtherance of conspiracy)

àalso clarifies prelim fact is: personal knowledge of W; authenticity of writing; personal conduct

c. CEC 403(b): judge may admit evidence of conditionally, even if evidence to support finding not yet offered subject to necessary evidence offered later in trial-2 exceptions: party can insist (1)evidence of Ws personal knowledge made b4 W testifies& (2)expert qualification proved b4 he gives opinion

d. Burden: on proponent of proffered evidence to show existence of prelim fact

e. Sufficient-Evidence Standard: 104(b) requires sufficient evidence introduced such that the jury could reasonably find conditional fact by PoE(Huddleson); lower standard than FRE 104(a)

àjury standard: as long as more likely than not that she told him, then allowed;

e. W testifies got email ‘I want u. Love, Bill’; email has no relevance unless show D sent it; need evid sufficient2 support finding to show inference; if found-to jury to resolve prelimQ that D was source

f. Fitzhugh: V told B(Vs bf) would tell son D was not dad after graduation. D killed V 2weeks b4. Ds motive is conditional on knowing Vs plan to tell son Evidence that (1)D knew son was not his(called son ‘her kid’); (2)when V told B, can infer she also told D = sufficient to support finding; Held: submit to jury on CR(unless you find D sufficiently knew V going to tell son, don’t admit evidence)

g. Cox: unless you find mom did tell Cox about hearing, can’t consider motive of hearing as crime.

C. Discretionary Balance: ct may exclude relevant evidence if prejudice substantially outweighs probative

1. Probative v. Prejudice: is evidence’s probative value substantially outweighed by:

a. FRE 403: danger of unfair prejudice; confusing the issues; misleading the jury; undue delay; wasting time; or needlessly presenting cumulative evidence

i. unfair prejudice: risk evid will be used to draw improper/inappropriate inferences other than meant

b. CEC 352: substantial danger of undue [imminent] prejudice, confusing the issues, or misleading jury or probability that admission will necessitate undue consumption of time (exception to Prop 8)

i. undue consumption of time: if 30 witnesses saw same thing, don’t need everyone to testify

c. Confusing the Issues(CtI): object on CtI when barrage ev might overwhelm jurors(kitchen sink)

d. Misleading the Jury: turns on accuracy of underlying facts, ability of jurors to assess defects

i. probability evidence: P used product rule to multiply probability of another yellow car, black man w/ mustache& beard w/ white woman w/ dark blonde pony. Held: probability evidence should’ve been excluded bc risk it would confuse &distract jury from focusing on requirement of proof beyond reasonable doubt. Testimony lacked foundation in statistical theory(false data/mistaken principles) &evidence distracted jury from proper function of weighing evidence(Collins).

e. Unfair/Undue Prejudice:

i. photos & inflammatory evidence: Trial ct did not abuse discretion by admitted Ex 42-5, but did w/ Exh 46-7 bc introduced primarily to inflame jury; P argued for purpose of showing wound angles but did not elicit testimony of angles/its significance(Bocharski).

ii. CGA: content of CGA not inflammatory/unfairly prejudicial& its relevance lay in its clear& accurate depiction of Ps theory of case; can offer instruction to safeguard(Serge)

iii. evidence of flight: flight’s probative value as circumstantial evid of guilt depends on degree of confidence 4 inferences can be drawn: (1)from Ds behavior to flight; (2)to consciousness of guilt; (3)to consciousness of guilt re crime charged; & (4)to actual guilt of crime charged.

àMeyers: 4th inference lacking bc don’t know if D fleeing from 1st or 2nd robbery

iv. alt ev: crime scene pic not made inadmissible bc of Ps inability to prove motive/availability of alt evidence-ct should not be persuaded by availability of alt evidence that is not prejudicial(Watson)

àOJ: argue photo depicting wounds irrelevant bc death not disputed &less prejudicial pics

v. stipulation: D charged w/ armed robbery; D objected to evidence he fled area& used false name when arrested in diff state. Held: Evidence relating to Ds arrest in GA inadmissible provided D stipulate he was in GA shortly after robbery & while there, he used a false name. Removing evidence of GA arrest rids risk that jury will perceive D as national criminal &stipulation affords jury a concrete basis to infer D left BY to escape capture for robbery(Jackson).

(1)status v intent/motive: if not proving Ds status, Ps admission survive 403 when Doffers stipulate

(2)Moreno-Bo: in traffic stop, cops found tapes w/ child porn; D offered to stipulate kid porn on tape. Held: using 403 per old chief, stipulation removes issue from trial-by playing tapes, does not prove D knew what was on them, thus prejudice of showing tapes outweighs probative.

(3)My Brother’s Keeper: D’s sperm found on leg of dead bro; can infer homo &argue establishes motive, but high risk of undue prejudice. Evidence not let in bc prejudicial risk outweighed.

vi. a v. th

show negligence/culpable conduct but admissible if strict liability

a. Ault: CEC 1151 has no application to cause of action based on strict liability, since strict liability does not encompass ‘culpable conduct’. Extrinsic policies that underlies 1151 had no application to products liability cases; CEC says admissible, but fed rule amended so evidence is not admissible.

4. Evidence of Other Accidents: generally admissible to prove defective condition, knowledge, cause of accident, provided that the circumstances of other accidents are similar & not too remote

D. Compromise Offers (F408/C1152): forbids admissions made during settlement talks to prove liability

1. FRE 408: does not require exclusion of any evidence otherwise discoverable merely bc it is presented in the course of compromise negotiations; exclusion is not required if compromise is offered for a purpose other than proving liability/validity of a claim/amount(e.g. proving bias)

a. rule does not bar exclusion when evidence offered for another purpose, such as proving bias/prejudice of W(Bankcard America: In order to counter Ps argument that D violated K, 1st judge correctly allowed D to explain that it converted accounts bc it thought settlement had been reached).

b. does not protect offers to compromise made before a ‘claim’ has been made

i. claims= lawsuit & sometimes informal oral or written demands, but implicit/potential claim does not mean that all offers of aid or compensation are covered

c. ADRA 652(d): requires local cts to provide for confidentiality of ADR process& protect statements made in course of mediation of disputed claim

i. Olam: ADRA for confidentiality only apply to cases arising under fed law & FRE 501 required application of CA rules w/ confidentiality of mediation in claim arising under state law. Ct applied CA law& ruled CEC 703.5 is not an absolute preclusion of mediatory testimony, since its phrased in terms of competency rather than privilege & both P &D waived their confidentiality protection.

ii. Foxgate HOA v. Bramalea: statutory confidentiality provisions were absolute, permitting no exceptions(diff from Olam bc there parties waived right).

2. CEC 1152: settlement to show liability inadmissible only in civ cases(can offer in crim bc Prop 8)

a. People v. Muniz: ct upheld admission of evidence D(sex offendor) offered to pay Vs med expenses, holding1152 only applies when evidence offered to prove ‘liability’ & only includes civil liability

3. May evidence of settlement attempts/statements be used to impeach later testimony:

a. No: 408(a) bars evidence of compromise attempts/conduct made in settlement talks when offered to impeach by prior inconsistent statmnt(in negotiation, party utters carelessly-I regret my role in event)

b. Yes: 408(b) permits evidence of compromise negotiations/conduct/statements made in negotiations when offered to prove a witness’s bias/prejudice

4. 3rd Parties: may bar evidence of compromise w/ 3rd parties when doing so advances public policy favoring settlement that informs the rule under FRE 408

a. Zurich Am. Ins. Co: FRE 408 did not bar evidence of an attempt to compromise claim related to but distinct from claim before ct; in deciding whether 408 should be applied to exclude evidence, cts must consider spirit & purpose of rule &decided whether need for settlement evidence outweighs potentially chilling effect on future settlement negotiations.

i. chilling effect depends on parties’ expectations at time of settlement negotiations

b. same transaction principle: 408 bars attempted use of completed compromise of claim arising out of same transaction btwn a 3rd person & a party to current suit

E. Liability Insurance (FRE 411/CEC 1155): both fed & CA keeps out evidence that D had insurance.

a. life insurance: would always be relevant in crim case to show motive

b. FRE 411: only fed keeps out evidence that D was not insured

i. evidence of partys liability insurance not admissible to show the person acted negligently/wrongful

ii. insurance may be admissible for purposes other than showing negligence/wrongful conduct

iii. Williams v. McCoy: P got in accident& hired atty after meeting Ds claims adjuster; P wanted to admit evidence to explain conduct re: consulting attny before seeing dr. Held: Rule 411 did not bar Ps explanation as to why she hired an attorney bc Ps explanation as Ds question did not bear directly on Ds liability/wrongful conduct, but simply explained confusing answer solicited by D.

c. FRE 409: excludes evidence of a person’s promise to pay medical expenses if offered to prove liability for underlying injuryàsuch promise supplies weak evidence of fault; human impulses

i. BARS offer or payment of medical costs TO PROVE liability

ii. extends no protection to statements surrounding negotiations/statements made during compromise to pay med expenses, rule only excludes the offer

iii. Roberson: D & expertW both insured by med malpractice liability mutual insurance carrier. Trial ct precluded P from presenting evidence. Held: Affirmed- Absent any evidence in the record to support inference that these experts would be untruthful in order to prevent a possible increase in their premiums, evidence offered by the plaintiffs’ attorney was not admissible.