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University of California, Hastings School of Law
Park, Roger C.

I. Relevance and Its Counterweights
A. Relevance to What?
1. FRE 401: “Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
a. Federal Rules: need not be disputed fact.
b. Cal. Evid. Code § 210: must be disputed fact to be relevant.
2. FRE 402: All relevant evidence is generally admissible. Evidence that is not relevant is not admissible.
3. Three Questions to Screen Evidence for Relevance / Determine Probative Value:
a. What does the proponent offer the evidence to prove or claim that it proves?
b. Does it help establish that claim?
1) May help establish an ultimate fact or an evidentiary link in a chain of proof (“a brick is not a wall”).
c. Is it provable in the case?
1) Substantive or procedural law may dictate whether it is provable.
4. Relevance and Inference
a. Facts that Discredit Claim of Belief
1) Knapp v. State: In support of self-defense theory, D testified that he feared V because he had heard that V clubbed an old man to death. Court allowed P to rebut this assertion with evidence that the old man in question died of senility and alcoholism with no evidence of beating. The issue was whether D in fact had heard the story; P’s evidence coupled with D’s inability to indicate his source made his story less credible. If there was no beating, it was less likely that D had heard about a beating.
2) Sherrod v. Berry: Police testified that they shot V because he made quick movement like he was reaching for a gun. Court excluded evidence that no gun was found on V’s body as irrelevant and prejudicial to determining what the officers reasonably believed at the time of firing their guns.
b. Harmless Error: error which was not prejudicial to the substantial rights of a party and in no way affected the outcome of the case.
c. Prejudicial Error: error which affected the final result of the case and was prejudicial to a substantial right of a party.
d. Offer of Proof: Party makes a showing (generally out of the presence of the jury) as to what the proffered evidence intends to prove in order to get the proffered evidence into the record for appellate review.

B. Probative Value Versus Prejudicial Effect
1. FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of u

an inference of guilt, to fulfill the jury’s expectations, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of D’s legal fault.
2) When D’s legal status, determined independently of the current case, is in issue, P’s right to tell a continuous story has virtually no application.
d. Alternatives
1) Does the alternative have the same probative value as the first option? If not, is the prejudicial effect of the first option worth its greater probative value compared to the alternative’s probative value?
2) Examples: stipulation, limiting jury instruction, less-gory or less-emotionally charged photos or video, objective financial or other records.
4. Weighing Credibility of Evidence
Ballou v. Henri Studios: The factfinder considers the credibility of evidence to decide whether to believe it. Court weighs probative value versus prejudicial effect as if the evidence were true, not considering credibility.