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Santa Clara University School of Law
Graham, Kyle

Evidence w/ Prof. Graham Spring 2015
I.       Relevance:
A.    General Rule: Evidence which is probative of a material issue is admissible.
1.    Probative: any tendency to prove or disprove
2.    Material: actually in controversy
B.    Graham’s Exam Approach:
1.    What is the issue/point/proposition for which the evidence is being offered?
2.    Is that a material issue?
a)         Consider the pertinent law.
3.    Is the evidence probative as to that issue?
4.    If relevant, move on to other issues affecting admissibility. If not, move to exclude for relevance.
C.    FRE 401: Evidence is relevant if:
1.    It has any tendency to make a fact more or less probable than it would be without the evidence; and
2.    The fact is of consequence in determining the action.
D.    CEC 350: Only relevant evidence admissible
1.    No evidence is admissible except relevant evidence.
II.    Admissibility of Relevant Evidence:
A.    FRE 402: Relevant evidence is admissible unless any of the following provides otherwise:
1.    U.S. Constitution
2.    Federal statute
3.    Federal rules of evidence; or
4.    Other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
B.    CEC 351: Except as otherwise provided by statute, all relevant evidence is admissible.
III. Propensity Evidence:
A.    General rule: Can’t use evidence of a person’s character or trait of character to prove action in conformity therewith.
1.    Example: D is on trial for assault and the prosecution seeks to introduce evidence that D started a fight the year before to show that D assaulted V this time.
B.    Crimes, Wrongs, or Other Acts
1.    General rule: crimes, wrongs, and acts cannot be used to establish a person’s character for purposes of showing that on a certain occasion the person acted in conformity with that character.
2.    Exception: crimes, wrongs, and acts are admissible for showing that D had motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
a)         If requested by D the prosecution must provide reasonable notice of the nature of the evidence before trial.
3.    Remember: If D testifies, they open the door and this rule no longer applies. In that case follow FRE 608 and 609.
C.    Exception for the Criminal Defendant’s Character
1.    FRE 404(2)(A): The defendant may introduce evidence of their own character if it is a pertinent trait and once admitted, the prosecutor may rebut.
2.    FRE 405:
a)         A defendant’s character may be established by either reputation or opinion testimony. On cross, the prosecution may ask about specific acts.
b)         If the D’s character or trait is an essential element of a crime, you may use specific acts.
3.    Hypo: D is on trial for assault and calls his employer Jim to testify. Jim testifies that D, in his opinion, is a peaceful person. The prosecution on cross asks Jim if he heard about D’s fight last year. This is permissible because D has “opened the door.”
D.    Exception for the Victim’s Character
1.    FRE 404(2)(B): D may attack victim’s pertinent trait or character by calling a witness to testify to that effect and prosecution may rebut by offering evidence to rebut and offering evidence showing that D possesses the same trait or character
2.    Prosecution can:
a)         Call a witness to testify that V has the opposite trait based on reputation or opinion; and
b)         Call a witness to testify that D has the same trait; and
c)         Cross-examine D’s character witness to specific acts showing D has the same trait
3.    D can: cross-examine V’s character witness to specific acts showing that V has the pertinent negative trait.
E.     Witness Impeachment
1.    FRE 404(a)(3): Witness character for truthfulness may be attacked under 607, 608, 609
2.    FRE 607: Any party may impeach a witness
3.    FRE 608: A witness’s character for truthfulness or untruthfulness may be attacked with:
a)         Reputation or Opinion Evidence
(1)          Impeaching party can call a witness to testify to either reputation or their personal opinion of W’s character for un/truthfulness
(2)          Evidence supporting truthfulness can only be sought after the witness has been attacked.
b)         Specific acts
(1)          General rule: extrinsic evidence of specific acts cannot be used to attack the credibility of a witness except through 609 or on cross-examination
(a)                On cross, the evidence must be directed to the character for un/truthfulness of either W1, or W2 if W1 testified to the character of W2.
4.    FRE 609: Evidence of a criminal conviction to prove a witness’ character for un/truthfulness is limited in scope to avoid prejudicial effect.
a)         Felonies:
(1)          Must be admitted in both civil and criminal cases where the witness is not a defendant
(2)          Must be admitted in criminal cases

e by the declarant while testifying at the trial or hearing at which it is offered, offered in evidence to prove the truth of the matter asserted.
1.    If a statement constitutes hearsay, it is inadmissible (FRE 802, CEC § 1200(b)) unless an exception applies.
2.    For conduct to qualify as hearsay the declarant must intend it to be an assertion. Assertive conduct is that which is intended to substitute for a statement.
a)         E.g. rubbing one hand’s fingers against the thumb in a motion meant to be understood as substituting for the statement “money.”
V.    Exclusions and Exceptions to the Hearsay Rule
A.    Statements That Aren’t Hearsay
1.    Party Admissions:
a)         A statement (any; it doesn't have to be an “admission”);
b)         made by a party;
c)         whom it's offered against.
(1)          Personal knowledge of the matter asserted is not required for a party statement.
2.    Adoptive Admissions:
a)         The party heard (or, with a nonverbal assertion, saw)
b)         and understood the statement/assertion by another,
c)         had both an opportunity and good reason to reject or object to the statement/assertion,
d)        and failed to do so
3.    Authorized or Agent Statements:
a)         The statement must be made bv someone authorized by the party to make the statement, or
b)         by a party's agent concerning a matter within the scope of the agency or employment, and made during the existence of the agency relationship.
4.    Co-conspirators’ statements:
a)         The statement must be made during the course of,
b)         and in furtherance of the conspiracy;
(1)          once a party withdraws from a conspiracy, subsequent statements by other (former) co-conspirators don't fit within this exception (but co-conspirator statements made prior to the party joining the conspiracy do fit the exception b/c the party is deemed to have adopted these statements by joining the conspiracy)