1) Is it RELEVANT?
a. Is it a criminal or civil case?
i. Criminal: Prop 8 (7 exceptions where relevant evidence can be kept out)
ii. Civil: Pleadings will determine what evidence is relevant via admitting facts
b. Should judge exercise discretion? Prejudicial, delay, or confusion?
i. ® “subject to the court’s discretionary decision . . .”
c. Are there extrinsic policy reasons for excluding the relevant evidence? What is the purpose of the evidence?
i. Liability insurance
ii. Subsequent remedial measure
2) Does the evidence seek to prove CHARACTER?
a. What is the purpose?
i. Direct evidence
ii. Circumstantial evidence
iii. Impeachment evidence
3) Is the evidence a DOCUMENT?
a. Has it been authenticated (laid foundation)?
b. If the writing is a copy or if there is oral testimony about the content of it, apply Best Evidence Rule.
i. Has there been an explanation for the lack of foundation?
c. Is it hearsay?
4) Is a W asserting a PRIVILEGE?
a. Does the W have standing to assert the privilege (is W the holder of the privilege)?
A) Threshold Q: Does the evidence have any tendency to make a material proposition more probable or less probable than w/o the evidence? (Does it help?)
Ø TRIGGER that not relevant: Evidence concerns some other time, person, or event.
Ü State what the relevance is in one sentence.
1) Evidence must be material & probative to be admitted [R 402, § 350] (a) Material – the fact that evidence is used to prove is in dispute
(b) Probative – evidence makes the fact trying to prove more likely than it would be w/o the evidence
¤ Direct evidence (i.e. eye witness)
– Always relevant if material
¤ Circumstantial evidence: must prove one fact in order to infer anoth
[“admissibility depends on evidence sufficient to sustain a finding” of a certain fact] (a) Determination of the existence of the preliminary fact is left to JURY.
(b) Judge decides if there is enough evidence for the JURY to find the disputed preliminary fact.
¤ EXAMPLES of conditional relevance
– Personal knowledge
– Authentication of a writing
– Conviction of a crime to attach credibility (D’s identity)
– OJ: Evidence from Bronco is only relevant if it was in the car the night of the murder. Chain of custody determines the relevance of the evidence.
F Give a limiting instruction to the jury!!!
2) No: Not conditionally relevant [R 104(a), § 405] ® JUDGE
(a) COURT determines the preliminary fact and decides if evidence should be admitted
¤ EXAMPLES of preliminary facts
– Trustworthiness of hearsay
Whether business record is in regular course of business