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

Evidence: Fall 2012
Professor Roger Park
A. History – Congress enacted modern FRE in 1975 and SC has authority to amend.
a. Originally SC appointed advisory committee to promulgate rules of evidence, and congress passed a statute preventing the rules from going into effect due to their controversial nature.
b. 3 reasons why it was controversial- expansive rule of executive privilege, no doctor-patient privilege, contained a broad liberalization against the rule of hearsay (Congress bolstered hearsay rule to make it more exclusionary).
B. Majority of states have adopted FRE:
a. Exceptions- several states such as NY, IL, CA have not adopted the FRE- CA has own rules, NY does not have own rules but use common law
1.      What is the evidence?
a. Isolate each piece of evidence with exactitude. (utterance, knife, letter)
2. What is the evidence offered to prove?
a. What element or defense of a COA is this evidence offered to aid/defeat.
b. Motive, intent, that perpetrator was armed.
3. Does the evidence help?
a. Make some assertion of fact at issue more or less likely to be true, than if the evidence is not admitted?
a.       How does the evidence tend to prove that for which it is offered?
4. Is its probative value (i.e., its ability to prove an assertion of fact at issue) substantially outweighed by the danger of unfair prejudice, confusion of the issues, possibility of misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence?
a. Old Chief case.
5. Is the evidence a statement? (If yes continue, if no, admissible)
a. Anything intended by the declarant to be an assertion. (act, speak, write)
6. Is the evidence of the statement offered for the truth of the matter asserted (or, alternatively, does the statement have to be true to be probative)? (if yes, continue, if no, admissible)
7. Is the statement within an exemption from or an exception to the hearsay rule? (if yes, continue, no, then admissible)
8. If the statement is not admissible under a traditional exemption from or exception to the hearsay rule, is it admissible under a catch-all exception Rule 807?
9. Finally, in a criminal prosecution, is admission of the hearsay statement forbidden by the Confrontation Clause or required by the Due Process Clause?
FRE 401:  Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence.
1.     RELEVANT (tends to prove or disprove a proposition) and
2.     MATERIAL (directed to a matter that is at issue) 
1) Evidence is relevant if it increases probability- “a brick is not a wall.”
2) Must be pertinent to what lawyer is trying to prove/ must be material to what is being proved in the case (Doesn’t have to be in dispute)
3) Questions to determine relevancy:
                        i. What is it offered to prove?
                      ii. Is it of consequence to the case?
                    iii. Does it establish that fact?
                    iv. Does it make that fact more or less probable?
Ex: In an action for punitive damages, the wealth of the D – (not of consequence in the action) is relevant to damages.
FRE 402: Relevant evidence is generally admissible unless the Constitution or another rule prohibit it; and evidence that is not relevant is not admissible.
CEC 210: Relevant evidence = evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any DISPUTED fact that is of consequence to the determination of the action.
Under FRE -fact can be disputed or undisputed
                    i.      Ex: The bank floor plan in a bank robbery is not admissible under CEC – b/c it’s not disputed, but under FRE it could be of consequence to explain the robbery.
                  ii.      Ex: (car accident) – D wants to admit negligence. Under CEC, liability is not disputed, so exclude evidence of negligence & only assess damages. Under FRE, the negligence might be provable, and evidence can be admitted on the subject.
Knapp v State (relevant evidence makes any fact of consequence more or less probable) D claims he murdered in self-defense, partially because he feared for his safety after he was told the victim beat an old man to death. State attempted to introduce evidence that the old man died of senility.
RULE: Evidence is relevant when it tends to prove or disprove an issue at trial.
Analysis:  The evidence is relevant to whether defendant heard what he claimed to hear. If there was no beating, it decreases the chance that D heard a rumor about the beating.
Sherrod v Barry: Police officer shot suspect when he thought the victim made a sudden movement towards his gun. Held: Evidence that suspect was actually unarmed is excluded. 
Analysis: It is relevant that the victim was unarmed because it diminishes the probability that he was making a quick movement for a weapon. HOWEVER evidence was held to be inadmissible. This is hard to reconcile w/Knapp.
It is important to ascertain a few things every time evidence is proposed.
1.      What is the evidence offered to prove?
2.      Does it actually help prove this?
3.      Is it of consequence in the action?
4.      Is it being offered for a permissible purpose?
5.      If it is relevant to several issues, is it permissible to prove all of them?
a.       If so, no problem
b.      If not, is there a way to limit the evidence?
                                                                               i.      Redaction
                                                                             ii.      Limiting instruction
FRE 403: Relevant evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues or waste of time.
Ø  The word substantially is significant, because it makes 403 balancing in favor of admissibility- if probative and prejudicial evidence is balanced, it is admissible.
Balancing Test:
1) Is there a proper purpose for this evidence?
2) What is the probative value for proper purpose of the evidence?
3) Is there danger evidence that the will be used for a forbidden purpose?
4) Is there an alternative way the party can include the information and accomplish the same purpose?
5) Does it carry prejudice that outweighs probative value?
CEC 352: Exclude evidence if the probative value is substantially outweighed by consumption of time, danger of prejudice, confusing issues, misleading the jury.
Old Chief v United States (syllogism is not a story): Old Chief requests gov’t not introduce details about his prior felony, except to state he had been convicted. Gov’t refused the stipulation, insisting on right to prove the case independently. 
RULE: When status is an element of a crime and there’s a way to show it that’s not as prejudicial, that evidence should be used.
Nature of D’s prior crime was prejudicial, could cause jury to convict for “bad character.” Prosecution is usually allowed to use evidence to convey the moral gravity of a crime to tell a “colorful narrative”/not disappoint jury expectations.”
Disappointing Expectations- if jury expects evidence and don’t get it, then they may hold that against the prosecution.
Parr case (cited in Old Chief) – [shows that Prosecution gets to present their case the way they want to]. Prosecutor wants to show porn movie to show it’s pornographic.  D offers to stipulate that the movie is pornographic. Here, the movie is part of the story relevant to the case, in contrast to Old Chief where the prior crime is not part of the current story, and rather reflects on his character.  Jury might hold it against the prosecution if not shown, and don’t want to disappoint the jury expectations by not showing them evidence they want to see
Weighing Credibility of Evidence
Ballou v. Henri Studios (judge has to accept evidence as credible to do 403 balancing test)
P moves to suppress evidence of deceased’s BAC test taken after death, which showed intoxication. P produces a nurse that states he was not drunk.  District Judge excluded the evidence because he thought the blood test was unreliable. 
RULE: In weighing probative value vs. prejudicial effect judge cannot determine the credibility of the evidence.
Under FRE 403 the court can balance the probative and prejudicial value. When a piece of evidence is admitted it is up to the jury to determine credibility and reliability.
HYPO – (Wrongful Death Action): Family likely cannot introduce a video of them grieving their father’s death because it’s too prejudicial (jury may compensate for grief). The proper purpose is to show the close relationship therefore the alternative is testimony of family members, or other videos not displaying grieving at the deathbed.
HYPO – (Murder case): Prosecution wants to include gruesome post autopsy photos. Likely NOT Admissible, but pre-autopsy photos are generally admissible.  Photos could expose the cause of deat

4) Identity:  Evidence of prior crimes IS admissible to show Identity – if the modus operandi in both crimes is so similar & unusual to indicate the same person committed both crimes- (Must be Signature Crime)
U.S. v. Carrillo (5th Cir 1993) (pg. 117) (Must be distinctive to prove identity)
Carrillo (D) convicted of distribution of drugs. He challenged the court’s decision to admit evidence of other drug deals in balloon packaging to show his identity.
RULE: Evidence of prior crimes to show identity must have a high degree of similarity to the present offense as to make it the handiwork of the accused.
Held: Method referenced is not sufficiently unique to identify D; it is a common method of packaging drugs.
5) CANNOT show Propensity or Pattern – CAN Admit the evidence IF it Shows Intent/Motive.
United States v. Beasley (Cannot Use Drug Crimes to Show Propensity)
Beasley (D) was convicted for distribution of illegal drugs and challenges the court’s decision to admit into evidence D’s other drug related crimes. 
RULE: Evidence of a pattern of similar crimes is NOT admissible to prove that on a particular occasion, an accused has acted in conformity with his past crimes. 
T.C. admitted evidence on the ground that prior crimes established a pattern because they were close in time. 404(b) does not allow use of specific acts to show propensity, thus the pattern cannot be used to prove Beasley obtained and distributed drugs. The evidence may be used to show that he did not obtain the drugs for his experiment, but this has a prejudicial effect on the jury in that they may punish him for his prior offenses. 
U.S. v. Cunningham (1996) (Evidence of prior bad acts CAN show motive)
Nurse is accused of stealing Demoral, seeks to exclude evidence of her Demoral addiction & prior thefts. P said Demoral addiction shows motive to steal Demoral. D said addiction and prior thefts just showed her propensity.
RULE: Evidence of prior bad acts MAY be admissible, even if it tends to show propensity – IF it also is relevant to show the D’s Motive. 
a.   DO NOT overlap – when past drug convictions are used to show D in robbery case is addict and addition is offered for motive in robbery.
b.   DO overlap – when crime is motivated by a taste for engaging in that crime, such as drug addiction, sex crimes, or firebug- evidence of unusual desire can show motive.
6) Sufficiency of Evidence for Other Bad Acts:
Tucker v. State (S.C. of NV 1966)
In 1957, Tucker (D) called police to his home, he was drinking and pointed police to dead body in his living room.  In 1962, same thing happens. D challenged trial courts admission of first murder (D was not convicted), as proof of a common scheme and plan.
Held: NV- Evidence that D committed the murder fails the NV clear and convincing standard. 
v  Professor Park: Likely a different result under FRE, jury entitled to make the call.
D.  HABIT EVIDENCE: FRE 406: Evidence of a person’s habit or routine practice MAY be admitted to prove that on a particular occasion, the person acted in accordance with that habit.
                        i. Testimony concerning prior specific instances of habit is allowed (does not have to be reputation or opinion)
                      ii. Habit (Regular response to repeated situation) vs. “Character” (general disposition)
                    iii. Law distinguishes situations where the defendant has a specific, predictable response.
                    iv. The thing the individual has a habit of doing must be at issue.
2) To admit habit evidence- (1) Must distinguish it from character evidence (2) Have sufficient proof (3) threshold question for the judge- can this be considered a habit?