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Santa Clara University School of Law
Uelman, Gerald F.

v Evidence: testimony, writings materials objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. (CEC 140)
v Proof: establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.
v Direct Evidence: Evidence that directly proves a fact, without an inference or presumption, and which is itself, if true, conclusively establishes that fact.
Ø Example: Testimony by W, “It was raining” is direct evidence that it was raining.
v Preliminary Fact: a fact upon the existence or non-existence of which depends on the admissibility or inadmissibility of evidence. The phrase “the admissibility or inadmissibility of evidence” includes the qualifications or disqualifications of a person to be a witness and the existence or nonexistence of a privilege.
Ø Note: Prelimiary fact is defined to distinguish those facts upon which the admissibility of evidence depends from those facts sought to be proved by that evidence.
v Proffered Evidence: Evidence the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.
Ø Note: Defined to avoid confusion between evidence whose admissibility is in question and evidence offered on the preliminary fact or issue. “Proffered Evidece” includes such matters as the testimony to be elicited from a witness who is claimed to be disqualified, testimony or tangible evidence claimed to be privileged, and any other evidence to which objection is made.
v Proposition 8, “The Victim’s Bill of Rights”
Ø Applies to all criminal proceedings
Ø Article I, Section 28(d) of the CA Constitution:
§ “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hears, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.”
Ø If a rule operates to exclude relevant evidence, it cannot be applied in a criminal case unless it falls within one of the seven exceptions!
Ø The 7 Exceptions:
§ 1. US Constitution Requires Exclusion (Due Process Violation; Fourth, Fifth, or Sixth Amendment Violation, etc.)
§ 2. Legislative Enactments by a 2/3 Vote. This includes:
·         351.1 (Exclusion of polygraph examinations)
·         1101 (Amended exclusion of evidence of character)
·         1521 (Secondary Evidence Rule)
·         ***You DO NOT need 2/3 vote for statutes which allow evidence IN, such as exceptions to the hearsay rule.
§ 3. Privileges: This exemption only applies to current privilege laws. Any new privilege laws must be enacted by a 2/3 vote.
§ 4.   Hearsay Rules: Exceptions which allow evidence IN do not require a 2/3 vote and will still apply in criminal cases.
§ 5. CEC 352: Discretion of the trial judge to exclude relevant evidence when its probative value is substantially outweighed by the dangers of prejudice, delay, or confusion or misleading of the jurors.
§ 6. CEC 782 and 1103: CA’s Rape Shield Law
§ 7. Existing Statutory or Constitutional Rights of the Press.
Ø In order to be relevant, evidence must be Material and Probative.
§ Material: Has a tendency to prove a fact of consequence to the action.
§ Probative: Has a tendency in reason to make a fact more or less likely than it would be without the evidence.
Ø CEC 210: “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 disputedfact that is of consequence to the determination of the action
§ ***FRE 401: Unlike CEC 210, Does not require that a fact be “in dispute” for the evidence proving it to be relevant.
Ø Disputed Facts: Civil v Criminal Case
§ Civil Case: In a Civil case, defendants can admit some of the allegations in the complaint and eliminate them as issues from the trial. Evidence proving the admitted allegations would therefore be irrelevant.
§ Criminal Case: Absent a stipulation, a prosecutor can admit evidence to prove every element of an offense beyond a reasonable doubt.
·         ***FRE: The trial judge must accept a defendant’s offer to stipulate a prior conviction if it is an element of the offense.
·         CEC: Court’s do not have to accept a defendant’s offer to stipulate. “When a prior conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.” However, Prop. 8 does not require the nature of the prior offense to be heard by the jur

ing are decided by a judge under the FRE, but decided by the jury under the CEC.
·         A party authorized another person to make a particular statement*
·         A Particular statement was within the scope of an agent or servant’s employment*
·         A particular statement was in furtherance of a conspiracy of which both the speaker and the person against whom the statement is offered were members.*
¨      Note: Because these three issues are decided by a judge under FRE, the judge may “bootstrap” when determining whether the evidence is admissible. 
¨      *These preliminary facts must be established to bring a statement within a hearsay exception for party admissions.
§ Other evidence which should be submitted to the jury only upon evidence sufficient to support a finding under CEC:
·         Conviction of a crime when offered to attack credibility. CEC 788. (Who actually was convicted is the preliminary question, because the conviction of another is irrelevant.)
·         Requirement that lay opinions be based on personal perception. CEC 800.
·         Identity of hearsay declarant. (Did the declarant actually make the statement as claimed by the proponent of the evidence? Does the statement meet certain standards of admissibility?)
·         Admissions of a party. CEC 1220.
·         Authorized adoptive statements. CEC 1221, 1222.
·         Admission of co-conspirator. CEC 1223.
·         Admission of third person whose liability, breach of duty, or right is in issue. CEC 1224-1227.
·         Previous Statements of witnesses. CEC 1235, 1236.
·         Authentication of writings. CEC 1400-1402.
·         Means of Authenticating a writing. CEC 1410-1421.
Ø When Can the Evidence Be Submitted?
The judge has discretion to admit evidence conditionally even if the evidence sufficient to support a finding of the preliminary fact has not yet been offered,