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Santa Clara University School of Law
Uelman, Gerald F.

FRE: 401-402
Evidence ———-> fact———–> Issue in Dispute
I.           Relevancy FRE
A.    Circumstantial Evidence
1.      Evidence that requires and inference is called circumstantial evidence.
2.      Evidence that does not require an inference is called direct evidence.
B.     Bare Relevance
1.      FRE 401: (The “Bare Relevance” Standard
a)      Relevant evidence means evidence having any tendency (probative value) to make the existence of any fact that is of consequence (material) to the determination of the action more probable or less probable than it would be without the evidence.
b)      Logical Relevancy
(1)       Probativeness : Relevant evidence must have some logical tendency to prove or disprove a fact of consequence
(2)       Materiality: Whether the proffered evidence bears on a fact of consequence in regard to the particular matter before the court.
2.      FRE 402
a)      All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, or Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to a statutory authority. Evidence which is not relevant is not admissible.
(1)       Exceptions
(a)       Application of the Exclusionary Rule: violations of 4th, 5th, 6th A.
(b)       Failure to pass 403 balancing test: probativeness v. prejudice
3.      FRE 403
a)      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, foncusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
II.        Relevancy CEC
A.    CA Prop 8
1.      Amended in the State Constitution to bar exclusion of any relevant evidence in Criminal proceedings, with 7 enumerated exceptions
(1)   “Except as provided by statute hereafter enacted by 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 hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, Evidence Code Sections 352, 782, 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.”
a)      7 Exceptions CEC 28(d)
(1)       Exclusionary Rule: 4th, 5th, 6th A violations
(2)       Legislative enactments by a supermajority of 2/3: basically all of the recently adopted or amended rules
(a)       351.1- exclusion of polygraph
(b)       1101- exclusion of evidence of character
(c)       1521- secondary evidence rule
(3)       Existing  Privilege Rules: note does not apply to newly enacted privilege rules.
(4)       Rules of Evidence related to hearsay
(5)       CEC 352: same as 403 balancing of probativeness vs. prejudice
(6)       Existing statutory or const. rights of the press
(7)       CEC 782, 1103: “Rape Shield Law”
B.     Probativeness & Materiality
1.      CEC 210
a)      Probative: tendency in reason to make a fact more or less likely than it would be without the evidence
b)      Material: tendency to prove a fact of consequence to the action
(1)       Difference: While 401 does not require a fact to be “in dispute” for evidence proving it to be relevant, leaves it to 403 balancing to determine that.
(a)        CEC defines relevant evidence to be evidence offered to prove or disprove “any disputed fact” that is of consequence.
c)      Evidence probative of credibility of witness or hearsay declarant is relevant.
d)     Criminal vs. Civil
(1)       Criminal Case:
(a)       Plead Guilty: admit all allegations (no issues at dispute)
(b)       Plead not Guilty: Put all elements at issue
(2)       Civil Case:
(a)       Admit some allegations and deny others. Which excludes evidence of the admitted allegations
2.      CEC 350
a)      No evidence is admissible except relevant evidence
3.      CEC 351
a)      Except as otherwise provided by statute, all relevant evidence is admissible.
C.    Stipulations
1.      Defined: Stipulation is a power retained by the D to admit to a certain charge (for example a felony) in order to avoid evidence of the particular facts to be shown in court that may result in prejudice.
2.      Cases:
a)      US v. Jackson: D’s arrest in Georgia was inadmissible at trial, provided that D enter into a stipulation to the effect that he was in Georgia shortly after the robbery and that while there he used a false name.
b)      Old Chief v. United State: a federal trial judge must accept a stipulation that a D charged with possession of a firearm by a convicted felon is a convicted felon, and it is an error to permit the P to prove the nature of the felony conviction.
3.      CEC/ Prop 8
a)       “Any prior felony conviction of any person in a criminal proceeding, shall subsequently be used w/o limitation for purposes of impeachment or enhancement of sentence (3 strikes) in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.
Conditional Relevance
FRE: 104/ CEC 400-405
I.           FRE 104(a)(b)
A.    104(a)
1.      Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of (b). Judge is not bound by rule of evidence except those with respect to privilege.
2.      Advisory Committee Note: Consistent with 104(a), the judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. It is then admitted but then the jury can decide later that the condition is not satisfied.
3.      “Boot Strapping” – In determining admissibility, Judge is not bound by rules of evidence except those with regard to privilege. Therefore judge can rely on hearsay and even the proffered evidence itself when determining admissibility.
a)      Under 104(a) – boot strapping okay, but not under 104(b).
B.     Conditional Relevancy FRE 104(b)
1.      Where the relevancy of proffered evidence depends on the existence of another fact, such evidence is admissible subject to introduction of evidence sufficient to sustain a finding as to the existence of the additional conditioned facts.
a)      Conditional relevancy covers situations where

ary issue (admissibility of the evidence). It must be proved by admissible evidence.
2.      Role of Judge
a)      405 requires the judge to determine the existence or nonexistence of disputed preliminary facts except in certain situations covered by Sections 403/404
3.      Hearsay Exception for Party Admission (pg 12 Wizard)
a)      Under FRE- the rules misunderstand the meaning of “conditional relevance” and throw under it preliminary questions under the hearsay exception. The judge thus makes these preliminary determinations w/ respect party admissions under FRE 104(a)
b)      CEC treats them as questions of conditional relevance and makes the trier of fact make such determinations under CEC 403.
Discretionary Balance
FRE 403/ CEC 352
I.           FRE 403
A.    Balancing
1.      “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
a)      “May be excluded”- ultimate decision left to discretion of the judge
b)      “Probative value is substantially outweighed by”- liberal evidence rule erring on the side of admitting evidence. The prejudice must be greater than the probative value.
c)      “The danger of unfair prejudice”: relevant evidence is inherently prejudicial, but it must be unfair to fall within the purview of rule 403. Unfair prejudice substantially outweighs the probative value.
B.     Prejudicial Photos
1.      Often, highly grotesque, inflammatory photos of autopsies and crime scenes will be excluded (although relevant) because of FRE 403/ CEC 352.
II.        CEC 352
A.    Balancing
1.      “The court in its discretion may exclude evidence if tis probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
a)      “undue prejudice” – not that evidence will have an overwhelming persuasive power, but that there is a risk the evidence will be used to draw an improper inference.
b)      Circumstantial evidence frequently excluded under 352 for undue prejudice
c)      Direct evidence, rarely excluded for undue prejudice, but can be excluded under 352 for time consumption.
III.     Specific Instances
A.    Evidence of Flight
1.      Flight is an admission by conduct but its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn