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Santa Clara University School of Law
Gillingham, CharlesGeorge

I.       Checklist to determine whether evidence is admissible or inadmissible
A.    Is Evidence relevant?
1.      FRE 401 – 403
2.      CA 210
B.     If relevant, then see if FRE (or CEC) prevents intro bcz of:
1.      Recognized privilege
a.       FRE 501 & Common Law
b.      CEC 900
2.      Lack of foundation
a.       FRE 901/902
b.      CEC 250, 1400 – 1402
c.       Best Evidence Rule (Original document rule) – FRE Art X
i.        No CA best evidence rule
3.      Procedures from eliciting evidence from witnesses
a.       FRE 611 – 614
4.      Form of the Evidence
a.       Hearsay – FRE 801, 803, 804/CEC 1200
5.      Improper Character Evidence or Improper substance of the evidence
a.       FRE 404 – 412, CEC 1100
b.      FRE 607 – 609, CEC 700’s
C.     If evidence gets past above hurdles, is it unfairly prejudicial, confusing, misleading, time consuming or cumulative
1.      FRE 403/CEC 352
II.    Relevance
A.    Federal Rules
1.      FRE 104 (a) – Q’s of admissibility generally
a.       Q’s concerning
i.        Qualifications of a person to be a W
ii.      Existence of a privilege
iii.    Admissibility of evidence (is it hearsay, does it fall w/in excited utterance)
b.      Are det by the Ct, subj to 104(b); Ct in making its decision is not bound by rules of evidence
c.       Std judge applies: have they shown me by preponderance of evidence that the evidence should be let in
2.      FRE 104(b) – Relevancy Conditioned on fact
a.       When relevancy of evidence depends upon fulfillment of a condition of fact, Ct shall admit evidence upon or subject to intro of other evidence sufficient to support finding that condition was fulfilled
i.        Requires proponent to introduce sufficient evidence that the jury could rx find the conditional fact by a preponderance of the evidence
ii.      Court may admit evidence whose relevance is conditioned on a fact only after it makes a preliminary determination that there is sufficient evidence to support that the conditional fact exists. The judge must determine only that a rx jury could make the requisite factual determination based on the evidence before it. The preliminary fact can be decided by a judge against the proponent only where the jury could not rx find the preliminary fact to exist
3.      FRE 401 – Relevant Evidence
a.       Evidence having any tendency to make existence of any fact of consequence to determination of action more or less probable than it would be w/o the evidence
4.      FRE 402 – Relevant evidence admissible; irrelevant evidence inadmissible
5.      FRE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
a.       Relevant evidence may be excluded by judge if probative value is substantially outweighed by
i.        Danger of unfair prejudice
ii.      Confusion of the issues
iii.    Considerations of undue delay
iv.    Waste of time
v.      Needless presentation of cumulative evidence
B.     CEC
1.      Prop 8
a.       CA did not adopt the FRE
i.        CEC applies in all court proceedings in CA except for grand jury proceedings
ii.      Prop 8 – the Victim’s Bill of Rights
1.      In CA, relevant evidence cannot be excluded in criminal cases in CA
a.       Exceptions
i.        US Const requires exclusion evidence
ii.      Legislative enactments relating to privilege
iii.    Rules of evidence relating to privilege
1.      All privileges exclude relevant evidence, but are exempted from Prop 8
iv.    Rules of evidence relating to Hearsay
1.      Hearsay rule excludes relevant evidence, but is exempted from prop 8
v.      Discretion of a trial judge to exclude relevant evidence (CEC 352)
vi.    CA’s rape shield law – rules exclude relevant evidence & are exempted from prop 8
vii. Existing statutory or constitutional rights of the press
2.      §352 – Discretion of Ct to Exclude Evidence

meone slips on a slippery porch, getting injured. P wants to intro evidence against Z & owner that owner put down sticky foot pads on the porch to keep from getting slippery
a.       P can’t intro evidence against Z that sticky foot pads were put down, bcz this is subsequent measures taken after accident which shows the injury would have been less likely to occur
b.      If owner says its all Z’s fault and not his, Z can introduce evidence that owner put sticky foot pads down to prove owner has ownership of the house (goes to impeach testimony by the Owner stated earlier)
c.       If Z says there was nothing he could have done to make porch safer, evidence of owner putting pads down after accident can be intro’d to impeach testimony given by Z
2.      FRE 408 – Compromise/Offers to Compromise
a.       Elements
i.        1st clause
1.      Evidence of furnishing, offering or promising to furnish, OR accepting or offering or promising to accept, a valuable consideration in compromising/attempting to compromise
2.      A claim
3.      Disputed as to either validity or amount
4.      Is not admissible to prove liability for claim, or invalidity of claim or its amt
ii.      2nd clause
1.      Evidence of conduct or statements
2.      made in compromise negotiations is not admissible
3.      To prove liability for the claim, or the invalidity of the claim or its amt
iii.    Rationale
1.      Underlying policy – get people to settle; encourage settlement
2.      Rule allows open discussion & exchange of info in hopes of promoting settlement