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Santa Clara University School of Law
Gillingham, CharlesGeorge

Fall 2016
I. Relevance
A. Jury Verdicts
FRE Rule 606(b)
(b) Inquiry into validity of verdict or indictment.
a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith
But a juror may testify about:
(1) whether extraneous prejudicial information was improperly brought to the jury’s attention
(2) whether any outside influence was improperly brought to bear upon any juror, or
(3) whether there was a mistake in entering the verdict onto the verdict form.A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
*Difference b/t CEC and FRE
Advisory Committee Notes:
as to matters other than mental operations and emotional reactions of jurors, jurors are not allowed to disclose irregularities that occur in the jury room, but allows testimony as to irregularities occurring outside and allows outsiders to testify as to occurrences both inside and out.
The way the jury reached its verdict
Components of deliberation (arguments, statements, discussions, mental and emotional reactions, votes and any other feature of the process
Testimony by jurors as to prejudicial extraneous information or influences that affected the deliberative process
Ex. statements by the bailiff, newspaper accounts brought into the jury room
CEC §1150- Evidence to Test a Verdict
Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, or such a character as is likely to have influenced the verdict improperly.No evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.
Nothing in this code affects the laws relating to competence of a juror to give evidence to impeach or support a verdict.
**CA: wants to know what goes on in the jury room (direct conflict with the federal rules)
Difference b/t CEC and FRE
Textbook Notes:
There has never been a mechanism by which the defendant or anyone outside the system could command the jury to reveal its decision-making processes.
Congress has now made it a crime to record, listen to, or observe any federal jury deliberation
rule prohibits the admission of juror testimony to impeach a jury verdict—the only exception was if there was extraneous influence on a juror, then the jury could testify to that
Internal-external distinction is used to identify those instances in which juror testimony impeaching a verdict would be admissible. (internal are not admissible, external are)
This is not based on whether the jurors were inside or outside the jury room; it is based on the nature of the allegations.
Lower courts have treated allegations of the physical or mental incompetence of a juror as “internal” rather than “external” matters.
“Nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury’s deliberations”
The court does recognize that defendant’s are constitutionally entitled to a trial by an impartial and mentally competent jury.
B. Relevant Evidence
Rule 401. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action, more probable or less probable than it would be without the evidence.
Advisory Committee Notes:
relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter/proposition sought to be proved in the case
probative value- a tendency to make the existence of the fact to be proved more or less probable
standard for probative value- more probable that it would be without the evidence
the evidence does not have to be directed at a matter in dispute, it can involve any material facts, even if the other party has conceded to it
if the opposing party has already conceded to the matter, it usually won’t come in due to waste of time and/or undue prejudice
background evidence will come in (even though it does not involve “disputed matter”) b/c it will aid in understanding
charts, photographs, views of real estate, murder weapons, etc.
Textbook Notes:
“Relevant evidence” means evidence having any tendency to make the existence of any fact,that is of consequence to the determination of the action, more probable or less probable than it would be without the evidence
(1) Materiality
evidence must be material—it must bear on a fact that is of consequence to the determination of the action.
Ex. in a murder trial, the victim’s lost earning capacity would not be material because it is of no consequence to the defendant’s guilt or innocence. However in a civil trial, it would be material
Whether evidence is material, depends on what issues are at stake in the proceedings, which turns to the substantive law of the jx.
**when deciding materiality of an issue—don’t look to the evidence rules for an answer, but to the substantive law
(2) Probativeness
evidence must be probative of a material fact
If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition.
If the proposition itself is provable in the case, or if it forms a link in a chain of proof that is provable, then it has probative value in the case.
A piece of evidence can be irrelevant for two reasons:
(1) because it is not probative of the proposition at which it is directed; OR
(2) because that proposition is not provable in the case (immaterial)
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Rule 402- established the basic principle that evidence that is not relevant is not admissible, while most evidence that is relevant is admissible.
CEC §210- “Relevant Evidence”
“Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the acti

evidence to prove the condition
CEC §402—Procedure for determining foundational and other preliminary facts
When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.
A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.
CEC §403—Determination of foundational and other preliminary facts where relevancy, personal knowledge, or authenticity is disputed
The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissibleunless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:
1. The relevance of the proffered evidence depends on the existence of preliminary facts
Motive is not an element of the crime charged and need not be shown.
However, you may consider motive or lack of motive as a circumstance in this case
Presence of a motive may tend to establish defendant is guilty.  Absence of a motive may tend to show the D is not guilty.
To make a possible motive relevant, you have to prove that the D knew this information
This can be proven by inferences
the chain of inferences leading from the contested fact to the conclusion of the defendant’s guilt is simply severed if the conditional fact—that both D’s knew of the information—is not established
The rule requires that there be sufficient evidence to support a jury finding of the conditional fact.
evidence for motive is usually 104(b) and can also come in under 404(b)
it does not have to be proved, but generally motive comes in
Conditional Relevance
With any logical chain of inferences, a clever lawyer could spot a missing link, without which the chain breaks apart.Those lawyers sharp enough to spy the missing link and form a conditional relevance objection may force the judge to analyze the problem under Rule 104(b).
104(b)—Evaluation of Evidence by the Judge (in CA—403)
The judge does not determine the witnesses credibility
Judge makes the determination of whether a reasonable jury COULD find fact
Different from 104(a)—where judge does make the determination
Conditional relevance occurs when you have to tie something together to make it relevant