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University of California, Hastings School of Law
Jackson, Teri L.


FALL 2011




a) Rule Statement: (401) Federal rules of evidence takes a liberal definition of evidence and states relevant evidence is any evidence having any tendency to make an existent fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence. Under Rule 402 all relevant is generally admissible. However, under rule 403 balancing test relevant evidence can be excluded if its probative value is substantially outweighed by

i) unfair prejudice,

ii) confusion of issues,

iii) or misleading the jury, or by

iv) considerations of undue delay,

v) waste of time, or

vi) Unnecessary presentation of cumulative evidence. .


a) Rule Statement: Under CA (210) there is a more restrictive definition of relevant evidence, relevant evidence is evidence relevant to the credibility of a witness or hearsay declarant and any evidence of a disputed fact. Under 351, all and only relevant is admissible. Under 353 balancing relevant evidence may be excluded if its probative value is substantially outweighed by the probability that its admissible will

i) Cause undue consumption of time

ii) Create danger of undue prejudice

iii) Confusing issues

iv) Or misleading the jury

3) Analysis: For Relevancy.

a) Three Questions:

i) What fact does the evidence prove?

ii) Does the evidence help prove the fact?

iii) Is the fact actually provable in this case?

(1) In a personal injury case, one side offers evidence to show that D is wealth (this is prohibited from substantive law) could be relevant but its prejudicial effect outweigh its value (doesn’t matter how rich D is, this does not prove damages).

b) Cases:

i) Knapp v. State: Judge allowed evidence to show D was lying. D claism that he called victim in self-defense because he heard that X beat an old man to death. P was allowed to rebut this by proving the old man died of natural causes. P evidence showed it was likely D was lying and there was no beating

ii) Sharrod v. Berry: A police officer shot and killed a man because he man who made a quick motion to his coat as if he was going to reach for a gun. Court excluded evidence that he was actually unarmed because it was not part of what the officer reasonably believed at the time. Knowledge at the time of the incident is relevant, not the knowledge discovered after.

4) Analysis for 352/403 Balancing probative value v. Prejudicial effect

a) Analysis:

i) What is the proper purpose for which the evidence might be offered?

ii) What is the danger that the jury will use the evidence for a forbidden/prejudicial purpose?

iii) Can an alternative means achieve the proper purpose?

(1) Ex: grieving family loss of father/husband. Proper purpose: close relationship, and father supported family. Dangerous purpose: might make the jury too sympathetic and award excessive damages for grief/emotions. Alternative way: family crying on the stand, financial documents.

b) Cases

i) Old Chief: Prior convictions is prejudicial. (but here there was enough evidence to convict him so it was harmless error)

ii) Ballou v. Henri Studios: Judge cannot make credibility determinations of the fact, that is the role of the jury. Ballou was killed in a car crash. The court incorrectly excluded evidence of Ballou’s blood alcohol level (0.24) because it conflicted with a nurse’s testimony. This evidence is relevant because it goes to contributory negligence and so the jury should determine if its credible.

c) If prejudicial, judge can make a limited instructed on the correct purpose of what evidence should be used for .

d) NOTE: mostly under Federal rules of evidence, everything is relevant, think for CA it needs to be a disputed fact. EX: P sues D for killing her husband. D admits liability. P wants to offer evidence that D was drunk. Under CA this is irrelevant because it is not a disputed because D already admitted liability, but under Federal this could be relevant in awarding damages.


1) Generally: Character evidence is excluded from evidence even though its relevant. Because…

a) Inferential prejudice: jury puts too much weight on character information

b) Nullification prejudice: jury might decided not to follow the law and convict the D because he is a bad guy

c) Wastes time: collateral issues are a waste of time.

2) Federal Character Rules

a) Rule 404 a: Character Evidence is Not Admissible to Prove Conduct: Evidence of a person’s character trait is not admissible unless it falls under some exceptions. (ONLY EXCEPTIONS IN CRIMINAL CASE)

i) Cleghorn v. Ny: evidence is admissible to show character to show the employees negligence, this evidence is used to prove something other than character, this proves that character is not essential element.

b) EXCEPTIONS: 404 (a) (1) MERCY RULE: In a criminal case the defense may bolster his defense and offer evidence of a pertinent trait of his character. Look too rule 405 a for method Once the accused opens the door, the prosecution may rebut this evidence (by bringing in another witness and addressing general reputation and opinion or cross examining the witness and can get into specifics, have you heard in 2005 D was carrying a gun?, D could argue back they are using this for propensity which is admissible under 404b, P could argue you back and say no it is being used to attack the credibility of the witness). Accused can also open the door to a character attack on himself regarding the same character trait of an alleged victim that he attacks under 404 (a) 2 (but not when he attacks the victim as a witness under FRE 404 (a) 3).

c) 404 (a) 2 Character of Alleged Victim: In a criminal case the accused may offer evidence of a pertinent trait of alleged victim’s character (to prove victim was the initial aggressor)(subject to Rape shield law 412) and prosecutor may offer evidence in rebuttal. Prosecutor may offer evidence of a character trait of peacefulness of the alleged victim in a homicide case to rebut that the victim was the initial aggressor.

d) 404 a 3: Character of a witness may be admitted under FRE 607-609

e) Methods

child molestation.

a) 412: Rape Shield Law: Sex Offense Case; Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition

i) Evidence of a victims past sexual behavior or sexual predisposition is inadmissible in a civil or criminal case.

ii) 412 b: Exceptions:

(1) In a criminal case: admissible when the evidence is offered to prove that a person other than the accused was the source of the semen, injury, or other physical evidence during the act.

(2) Prior sexual behavior with D (to prove consent)

(3) You can admit evidence if excluding it would violate the constitutional rights of D.

(4) In a civil case (sexual harassment) it is admissible under these rules also and evidence of a victims reputation is admissible only if has been placed in controversy

iii) 412 (c) procedures of admissibility: providing for hearings in limine on the issue of admissibility and in some cases providing for in camera hearings to protect the victims privacy.

iv) Cases:

(1) State v. Cassidy: cannot introduce prior sexual evidence to Prove KAPPOMIA.

(2) Olden v. Kentucky: D can offer evidence to prove Victim had motivation to lie about the sexual encounter.

b) Rule 413. Evidence of Similar Crimes in Sexual Assault Cases. (Relates to Character of Alleged Perpetrator.

i) Under this rule, in a criminal case, evidence of D’s past sexual acts is admissible. To be admissible, the prior sex crime must have reached a level of seriousness.

c) Rule 414 Evidence if Similar Crimes in Child Molestation Cases.

i) Evidence of pas offenses of child molestation are admissible (related to children under 14)

d) Rule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

i) In a civil cases in which a claim for damages or other relief, evidence of that party’s commission of another offense or offenses of sexual assault or children molestation is admissible.

e) Rule 403 still applies to the above rules and can keep certain evidence out. When conducting the 403 balancing test, here are some factors to consider:

i) Substantially similarity between past act and current act,

ii) The closeness in time of the prior and charged acts,

iii) The frequency of the prior acts,

iv) The presence or lack of intervening acts, and

v) The need for evidence beyond the testimony of D and V.

BUT under rule 415, you presume that the evidence is admissible under 403 because this what congress meant when it included this rule.