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Santa Clara University School of Law
Kreitzberg, Ellen S.

Spring 2017
· Evidence law limits the information that juries can hear because certain evidence will prevent juries from coming to a truthful result for a variety of reasons.
– All evidence rules concerning relevance are derived from FRE 401, 402, 403.
FRE 401- “Test for Relevant Evidence”
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be without the evidence;
(b) The fact is of consequence in determining the action.
FRE 402 – “General Admissibility of Relevant Evidence”
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
– “let all evidence in unless there’s a narrow rule”
FRE 403 – “Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
No difference b/w CEC 140 and FRE 401.
401 Is A 2-Part Test
Two components of relevance- the evidence must be (a) probative and (b) material.
(1) Probative: Does it help in some minimum way to establish the fact or proposition it sets out to prove?
– The evidence must tend to prove or disprove a fact by making the fact either more or less probable than it would be without the evidence.
– Argue the existence of logical relationship using basic knowledge/common sense.
 (2) Material: The fact that the evidence serves to prove/disprove must have a substantial bearing on the legal issues(s) of the case.
– Nature of c of a
– Defenses
– Pleading of parties
– Substantive law
– Issues of persuasion (things that aren’t direct elements of an offense but will still be admitted)
– Always first ask “criminal or civil?”
– What c of a?
– Who’s introducing evidence?
– What’s the evidence?
– And for what purpose?
– (closing argument rule – IMPORTANT- “what are u going to tell the jury at closing argument abt this evidence?”)
FRE 104(b) Relevance That Depends on a Fact. 
– When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
No difference b/w CEC and FRE.
– The proof of the fact doesn’t have to be conclusive/direct but can merely be a reasonable inference that may be drawn from preponderance of the evidence by the jury.
· Ex: Evidence of a fact that might be seen as a motive can’t be admitted unless it is also established that the defendant knew of the fact.
            – Motive fact > DF knew of motive fact > DF had motive > DF did it
– If you’re a clever lawyer, you can always find a missing link in the chain of inferences in order to make an objection under FRE 104(b).
            – Otherwise, judge will just analyze evidence under the basic 401 standard.
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, Other Reasons
– The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence (last one not in CEC).
No difference b/w CEC 352 and FRE 403.
· FREs 407-411 reflect the point that as a matter of law, the specific evidence they govern fail a FRE 403 balancing test.
· Although there are rationales based on probativeness v. unfair prejudice in FREs 407-11, there are also public policy reasons behind them.
· FREs 407 to 411- except 410- list specific instances where the evidence cant be admitted and allows it in all other circumstances. FRE 410 broadly excludes evidence except in a couple specific instances.
Rule 407. Subsequent Remedial Measures
· When measures are taken that would have made an earlier injury or harm less likely to occur…
· Evidence of the subsequent measures is not admissible to prove:
culpable conduct;
a product defect; or
a need for a warning or instruction.
· But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
– Identical effect except CEC doesn’t apply to strict liability / product defect actions.
PV RATIONALE: Evidence of later remedy is weak evidence of negligence.
PP RATIONALE: To encourage remedies.
Subsequent Remedies by 3rd Parties
– When the remedial measures are made by a 3rd party, such evidence will be admitted under FRE 407, but will probably not be probative enough to satisfy 403.
Rule 408. Compromise Offers and Negotiations
· Evidence of the following is not admissible to prove / disprove the validity or amount of a disput

contracted to use the sub-ISO Universal to sign up merchants to Bankcard.
– The contract had a term that stated that a year after termination of the contract, Universal couldn’t steer merchants it signed up to Bancard competitors.
– Couple yrs later, at a negotiation meeting about the termination of their contract, Bancard led Universal to believe that Bancard waived this term, so Universal steered some merchants to a Bancard competitor.
– Bancard sued Universal, claiming that Universal breached the contract when it did this, and moved to exclude evidence of their waiver of that term under 408 since the waiver was made during negotiation.
HOLDING: Even though this evidence seems like it would be prohibited under the plain language of 408, its exclusion would contradict the purpose of 408. The purpose is to encourage settlements, and allowing a party to waive a term and then sue for breach of that term just b/c the waiver was during a negotiation would not encourage settlements.
Rule 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
PV RATIONALE: Evidence of offer is evidence of natural humane impulse; not concession of guilt.
PP RATIONALE: Otherwise would discourage assistance/humane action.
CEC §1160 Comparison
– The CEC doesn’t have an equivalent- instead, it has a provision saying statements of apology and sympathy are inadmissible.
– CEC one is pretty narrow provision.
Rule 410. Pleas, Plea Discussions, etc.
· BARS (against the defendant):
(1) Guilty plea later withdrawn,
(2) Nolo contendere plea,
(3) Statements made in above plea proceedings,
(4) Any statements made in plea talks with prosecutor if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
(i) To complete partial account of plea discussions, or
(ii) In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.