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

FRE 607- Who may Impeach a Witness: Any party, including the party that called the witness, may attack the witness's credibility
·         AC NOTE: Rule adopted by congress is the rule adopted by drafters without change
FRE 401- Test for Relevant Evidence
Evidence is relevant if:
·         It has any rendancy to make a fact at issue more or less probable than it would without the evidence
·         The fact is of consequence in determining the action
Questions To Ask:
1.       What is it being offered to prove?
2.       Does it make a fact at issue more or less probable?
3.       Is it of Consequence?
                                         i.            Not of consequence if the fact it seeks to prove makes no difference (relevancy about the relationship between evidence and the proposition to be proven)
                                       ii.            Pretrial procedure- might be prevented
***VERY LOW BAR- for relevancy- if it is even minimally more probable then it is relevant- is the material fact more or less probable then without the evidence
**Do not confuse sufficiency with relevancy
FRE 402: General Admissibility of Relevant Evidence
·         Relevant Evidence is admissable unless any of the following provides otherwise:
o    The US Constitution
o    A federal statute
o    FRE rules
o    SC rules
·         Irrelevant evidence is not admissable
FRE 403: Excluding Relevant Edivence for Prejudice, confusion, Waste of Time, or Other Reasons
The Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
·         Raises the 401 bar-
o    How much does the evidence add and what are the costs?
o    Does it carry dangers of prejudice or confusion?
o    Objections should be about prejudice and not relevance
***THE word “substantial” is critical – b/c it makes 403 biased in favor of admissibility
Judge should consider:
          The effect of cautionary jury instructions 2. the availability of alternative proof 3. the possibility of stipulations to reduce unfair prejudice in making the balancing determination
CEC 210: Same as FRE 401-  having any tendancy in reason to prove or disprove any disputed fact that is of consequence to the determination of the action
·         APPENDIX D- Section 352- Same as 403-
·         Court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will
                Necessitate undue consumption of time
                Create substantial danger of undue prejudice, of confusing time issues, or of misleading the jury
Morgan- the persuasive value of a piece of evidence rests on the number of inferences required and the degree of probability  of the cexistence of the basic fact of eacg inference and the fact incurred
McCormick-  the test of relevancy is just a brick in the wall of whether the evidence is sufficient to go to the jury (just a brick in the wall)
Knapp v. State
F: Guy killed a cop, b/c he had heard that he clubbed an old man to death during arrest
I: is the real cause of the old mans death relevant?
R:  Use the Steps
1.       What is it used to prove?- clubbing never happened
2.       Does it help prove- kind of
3.       Is it of consequence- if it didn’t happen- less likely he heard about it
4.       Rule 403 Balance- not a waste of time – b/c will make more/less likely that he heard rumor
Sherrod v. Berry
F: cops shot a guy who reached into pocket
I: is the fact that he had no gun admissable?
R: argument for both side- Irrelevant to mental state of the officer- may be circumstantial evidence that the belief was unreasonable
Old Chief v. US
F: Felon arrested for having gun
I: are the nature of his previous crimes relevant?
R: Rule 403 Balancing:
o     “unfair prejudice” = cause the factfinder to rule on some ground other than the relevant charges
Here: there was too great  a danger that the previous convictions would influence the jury: just needed to know that he was in a certain class of criminal
·         Rule 403- judges need to ask in balancing
          For what proper purpose could the evidence be used and what is the probative value of that evidence
          Whats the danger it will be used for a prejudicial purpose (Jury will decide on some alternative grounds, or grounds prohibited by the law)
                     3.            Alternatives- is there some other way the party could accomplish the same thing
·         Advisory Committee- the use of alternative methods of prove should way against risk of prejudice
Parr v. United States
F: Porn Case
I: should the Jury actually be shown the Porn?
R: Court allowed b/c the Prosecution needed to paint the whole picture
·         Jury needs to get the most evidence allowable
FRE 102- Rulings on Evidence:
These Rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination
FRE 103- Rulings on Evidence
·         Preserving a claim of Error: a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
                                       1.            If the ruling admits evidence, a party, on the recornd:
A.      Timely objects or moves to strike; and
B.      States the specific ground, unless it was apparent from the context; or
                                       2.            If the Ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apprarent from the context
·         Not Needing to renew an Objection or offer of Proof
c.       Court's statement About the Ruling: Directing an offer of proof
d.      Preventing the Jury form Hearing inadmissable Evidence- to the extent practicable, the court must conduct a jury trial so that inadmissable evidence is not suggested to the jury by any means
e.      Taking Notice of plain error: A court may take notice of a plain error affecting a substantial right, even if the claimed error was not properly preserved
Ballou v. Henri Studios
F: P was killed by D's driver; P tried to suppress evidence that P was drunk;  TC ruled that the blood sample was inadmissable; P has a nurse who says she did not smell alcohol
I: Was the evidence properly exluded?
R: Under seciton 103- the FRE 403 balancing test is to be done outside the view of the Jury- Credibility Though: is an issue for the jury- the judge should not rule on credibility
CEC: to be admissable- the fact that they aim to prove need to be in dispute- if they have already been admitted or stipulated then they are not in dispute
**Argument Against- P should be able to prove the case its way- Jury needs a full picture- sometimes details are necessary- different burden of proof in different cases
FRE 404: Character Evidence; Crimes or Other Acts
a.       Character Evidence
                                       1.            Prohibited Uses: evidence of a persons character or character traits is

on or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of a person conduct
          By Specific Instances of Conduct- when a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the persons conduct
FRE 406- Habit; Routine Practice
Evidence of a persons habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
Can not submit evidence in order to make an inference- they stole before so they stole here
·         WHY?
1.       Inferential Mistake error- Jury will place too much weight on the character and ignore the present situation
2.       Nulllification Prejudice- Jury may ignore the law when they believe character to be bad
3.       Waste of time- don’t spend time litigating collateral issues
No cross-situational disposition-  if this character inference is not necessary then it is not character evidence
·         If A=B=C is character, but A=C then no character evidence b/c no inference was necessary
Habitual Evidence- permissable but not as character (eg. He went down the stairs two at a time- to show that he was always in a hurry)
Trait of character- ie Libel or Slander- if the character is an essential element
Under FRE 404- character evidence  admissable to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence or mistake or accident
·         Permissible purposes
·         To complete the story by adding context- think “same transaction”
·         Prove the existence of a larger plan
·         The crimes were identical in method
·         To show that the act was not an accident, involuntary, or without guilty knowledge
·         To establish motive- motive may be probative of the identity of the criminal or of the malice or specific intent
·         To establish opportunity- they were present at the scene of the crime
§  Distinctive or unusual skills
·         To show malice, deliberation or specific intent
·         To show passion or propensity for unusual sexual relations
§  Differs from usual bar against such evidence- policy or prejudice?
·         To impeach the accused who takes the witness stand by introducing past convictions
§  The connection between the evidence and the purpose should be clear
                                                           ·            If the Defendant admits something- more evidence not needed
****Still need a 403 balance- Classify the evidence as having a valid purpose then 403 balance
***Subsequent acts (after the criminal act) are admissible for these purposes
***Allowed in civil cases as well