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University of California, Hastings School of Law
Keane, Peter G.

Peter Keane
Fall 2012
·         4 kinds of evidence:
o   real evidence: an actual piece of the real world. Tangible.
o   Demonstrative evidence: pictures, videos, films. Anything that demonstrates what you are trying to prove. It can come in in all kinds of ways
o   Documentary evidence: documents showing various things
o   Witnesses
·         Presumptions: certain types of evidence have certain type of power just because of what they are.
o   A woman is married and a child is born during the time she is cohabitating with her husband, who is not impotent or sterile. The law presumes that the husband is the child’s father.
·         Generally: All relevant evidence is generally admissible. (402)
·         Test for Relevance (401): If the evidence tends to make any fact of consequence more or less probable  than it would be without the same evidence, then it is relevant.
o   Evidence only needs to move the needle a bit to be relevant.
o   CEC 210: Relevancy test hinges on whether a fact is in dispute.
o   Knapp v. State: D killed sheriff. Claimed self-defense since he heard sheriff beat an old man up. Pros introduced evidence that old man died of natural causes.
§  Relevant. Evidence that no beating took place is relevant to the question of whether D actually heard what he claimed he heard.
o   Sherrod v. Berry: Where officer shot driver after pulling him over, claiming driver make quick movement to jacket, evidence excluded that driver not actually armed.
§  Relevant. If no gun, its less likely driver made quick movement.
·         Relevancy Test (401):
o   1. What is the evidence offered to prove?
o   2. Does the evidence help prove that fact?
o   3. Does the evidence help establish the fact?
§  Does it have the tendency to make it more/less probable?
·         Relevancy an issue where out of court words are introduced to support an inference that the speaker did not intend.
·         Statement’s relevance is likely to decrease as the link between its explicit content and the idea it is introduced to prove gets less and less direct.
·         Balancing Test (403): If relevant evidence’s probative value is substantially outweighed by a danger of one or more of the following, then the court can exclude it.
o   Probative Value: Refers to evidence or facts that actually have the effect of proving facts sought.
§  If the evidence tends to prove an issue, then it has probative value.
o   Unfair Prejudice: Refers to the undue tendency to suggest decision on improper basis
§  Evidence that is likely to arouse emotional response rather than rational response from jury.
o   Factors:
§  1. Unfair prejudice
·         unfair; compels the jury emotionally.
§  2. Confusion of issues
§  3. Misleads jury
§  4. Undue delay
§  5. Wasting time
§  6. Needlessly presenting cumulative evidence.
o   Probative Value vs. Prejudicial Effect Analysis:
§  1. What is the proper purpose for which the evidence might be offered?
§  2. What is the danger that the jury will use the evidence for a forbidden/prejudicial purpose?
§  3. Can an alternative means achieve the proper purpose?
§  Ex. Grieving family over loss of father/husband.
·         Proper: close relationship; father supported the family.
·         Forbidden: might make jury too sympathetic and award excessive damages for grief/emotions.
·         Alternatives: family crying on stand; financial documents.
o   Ballou v. Henry Studios: Ballou killed in a car crash. The court incorrectly excluded evidence of Ballou’s blood alcohol level (0.24) and stated it was not “credible” 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 they want to believe an item of evidence. Therefore, should have been admitted.
§  Keane says the probative value is so significant that it outweighs the prejudice [his BAC level].
Foundational Facts (104): aka Judge vs. Jury
·         Judge: Foundational Facts of Admissibility (104a)
o   Judge decides based on a preponderance of the evidence whether preliminary fact is true, without being bound by the rules of evidence –
§  Concerning:
·         Qualification of a person to be a witness;
·         Existence of a privilege; or
·         Admissibility of evidence.
§  Judge can allow any evidence to be used, including hearsay evidence, to lay the foundation for a hearsay exception. 
·         Did the person speak under belief of impending death; or was the person speaking on the basis of personal knowledge
o   Does a preponderance of the evidence support this conclusion?
§  Weight and credibility are always reserved for the jury.
o   CA Rule: Judge can only use admissible evidence to find foundational facts.
·         Jury: Foundational Facts of Conditional Relevancy (104b)
o   If relevance is conditioned solely upon a question of fact, then it goes to the jury.
§  In order for A to be relevant, B must be established.
§  Judge makes a preliminary determination whether the foundational evidence could lead a reasonable jury to believe evidence.
·         If yes, item is admitted. The jury can then decide whether the condition is established.
·         E.g. case involves a car crash between a black car and a white car. Someone saw a black car run a red light – this is only relevant if the black car was the same car in both instances.
·         Policy: highly relevant but not allowed to be used as evidence because prejudicial and appeals to emotion. This is unfair when jury is trying to determine what happened in a case. Only evidence that pertains to specific instance will be admitted.
·         FRE 404(a):  Evidence of a person’s character is not admissible to prove that the person acted in conformity with that character on a given occasion, EXCEPT:
o   In Criminal Cases:
§  1. Proof of D’s good character: D may bolster his defense and offer evidence of good character. He can also present witnesses to show that he has good reputation.
·         But once D opens the door, the pros can rebut the evidence. (not with completely different evidence though)
·         If D attacks V’s character, D opens the door to a character attack on himself regarding the same character trait of V.
·         The admission of good character evidence must be relevant to the crime charged.
§  2. Character of Alleged Victim: D may offer evidence of pertinent trait of V’s character, and the pros may offer evidence in rebuttal.
·         If D takes this initial step, pros can rebut by offering contrary character evidence.
·         E.g. If D offers evidence that V was the first aggressor in a homicide case, pros may offer counter evidence of a character trait of peacefulness of the V to rebut.
·         But cannot show the sexual behavior of rape victim.
o   Character of Witness: Evidence of witness’ character may be admissible to reflect on credibility by showing prior reputation for reliability or prior felony under FRE 607, 608, and 609 [W character and impeaching W].  
Methods of Proving Character
·         Reputation or Opinion (405a): Character evidence can only be in the form of reputation or opinion. When D initiates a character inquiry, W is not allowed to base his testimony on anything but hearsay. W is only allowed to summarize what he has heard in the community. (Michelson v. U.S.)
o   When D has “opened the door”, on cross-x, pros
§  Can ask about specific acts to test the credibility of W. Pros allowed to cross-x and question the qualifications of the W to convey the community opinion.
·         W needs to lay foundation that can speak about person.
o   Has known person for a long time.
o   Has knowledge about person.
o   Knows person’s reputation in the community.
·         If W didn’t know about the event, then maybe the W is not credible.
·         If W did know about the event but it did not affect his opinion of D, then can impeach W (e.g. W testifies that she heard D shot 4 people, but still thought that D was peaceful)
·         Michelson v. U.S.: D claimed he was entrapped and offered character evidence on honesty. On cross-x of character Ws, permissible to ask if W has heard of specific instances of conduct.  (Rationale: Impeachment of witness, i.e., witness is not qualified to comment.)
§  Limits on cross-x:
·         Pros can’t produce extrinsic evidence
·         Must take witness’ answer
·         Must have good faith basis for what he brings up
o   May not present witness with questions that he would have no way of knowing
Exception: When D’s Character is in Issue
·         Specific Instances of Conduct (405b): A person’s general character, or his particular character trait, is admissible if it is an essential element of the case.
o   A person’s general character or trait that he has, may be an essential element of the case, when that character or trait determines the rights and liabilities of the parties.
§  In such a situation, character evidence is allowed – (all three types: specific acts, opinion, and reputation)
·         When character is in issue (they are rare):
o   Ex. P sues D. P says D libeled him by calling him a liar. D can introduce evidence of P’s character for untruthfulness, since that character trait is an essential element of D’s defense that his statement was true.
o   Civil: Negligent entrustment and Defamation.
o   Criminal: Entrapment [Pros rebuts by showing D was “predisposed” to commit the crime] is the only instance.
·         If evidence is offered as circumstantial evidence to prove some other fact, then character is not an

·         Character vs. Habit
o   Character: A generalized description of one’s disposition, or general trait like honesty, temperance, or peacefulness.
o   Habit: Describes one’s regular response to a repeated specific situation. Habitual acts may become semi-automatic.
§  Ex. Going down a particular stairway two stairs at a time.
·         Perrin v. Anderson: Character evidence for propensity inference is admissible only where it’s an essential element (not the case here). Evidence of D’s repeated reaction of extreme aggression when dealing w/ uniformed officers = admissible evidence of habit.  When character is used circumstantially, only reputation and opinion are acceptable forms of proof.  Not specific acts. [case where guy beat cops up and cops shoot him] RAPE SHIELD LAWS (412)
·         In sex offense cases, evidence of V’s past sexual behavior or predisposition is not admissible, whether offered to prove character or not. No KIPPOMIA gateway.
o   Cassidy: D charged with rape but he and V had different recounts of facts. D stated consensual. V stated consensual until D called her names and raped her. D wanted to offer testimony of another man V had sexual relations with, who testified similarly to him. Ct held inadmissible.
·         Exceptions
o   Criminal:
§  Evidence of specific instances of V’s sexual behavior to prove that person other than D was the source of semen, injury, or other physical evidence;
§  Evidence of a specific instances of V’s sexual behavior with D to prove consent; and
§  Evidence that would violate the constitutional rights of D if excluded. (Confrontation Right)
·         Olden v. Kentucky: D’s theory is V fabricated story to protect relationship w/ D’s brother-in-law (w/ whom V was living with) and other sexual behavior. D offered evidence for motive. TC balanced and did not admit evidence b/c V was white and D black. SCOTUS held admissible on basis of D’s 6th Amendment confrontation right.
·         Platero: D claims sex was consensual where D pulled over V and co-worker and drove away with V. Offering evidence of V’s affair w/ co-worker, as V’s motive to protect relationship.  Court holds alleged affair is disputed fact. Therefore, it’s a jury issue and its exclusion would violate D’s right to jury trial.
o   Civil:
§  Evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if is otherwise admissible under these rules and survives FRE 403.
§  Evidence of a V’s reputation is admissible only if V puts it in controversy.
·         Policy: Protect victim's sexual privacy and shield her from undue harassment, encourage reports of sexual assaults, and enabling the victim to testify in court with less fear of embarrassment.
·         Evidence of Similar Sexual Assaults or Child Molestation (413-415): – Exceptions to the general prohibition on character evidence in cases involving sexual assault and child molestation. 
o   Criminal Sexual Assault (413): If D is accused of sexual assault, evidence of D’s commission of another sexual assault is admissible for any matter for which it is relevant. [Does not need be a conviction] §  Requires:
·         Specified crime of sexual assault. Must be a serious sex crime.
·         Pros needs to give notice to the D that he will present evidence of prior sex crime.
·         FRE 403 balancing test still applies.
§  Sexual assaults do not have to be particularly similar. Just has to be sufficiently similar to the current sexual assault. But where the past act is not substantially similar to the act for which the D is being tried, and/or where the past act cannot be demonstrated with sufficient specificity, the propensity inference provided by the past act is weaker
§  Note: when the current charge is rape of an adult and the prior conviction is child molestation, prior conviction is not admissible.