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

Fall 2010, Peter Keane
Evidence, Cases and Materials; Waltz, Park, Friedman; 11th Addition
UC Hastings

STEP 1: RELEVANCE – Evidence must be relevant in order to be admissible.

RULE: Relevance – when evidence tends to prove or disprove an issue or fact that is involved in the case, it is material and relevant and admissible (unless excluded under another rule)

Need not be the ultimate issue of the case to be relevant
Influenced by how much you need it

Must pass the threshold of “probability” / there’s a reasonable chance that something will or did happen à Merely showing something is possible is not enough

No determination of strength or weakness – “A brick tends to prove a wall”

Rationale: wastes time and resources to talk about irrelevant shit; distracting.
Relevancy v. Sufficiency:

Relevancy is a determination of whether certain items will be admitted
Sufficiency is whether all the evidence on the issues is sufficient to permit the issue to go to the jury. More stringent than relevancy

Conditional Relevance – in order for something to be relevant, a condition must first be met
EX: cop shoots X thinking that he’s reaching for a weapon in an auto.

Evid: subsequent search reveals no weapons
H: relevant b/c it makes it less likely that X was reaching for something / more likely that cop was lying.

Once you determine that something is relevant, move to the admissibility determination:

Probative / Prejudice Test

Probative / Prejudice Balance Test – allows exclusion of relevant evidence if the probative value is substantially outweighed by the danger of unfair prejudice.

i. Prejudice = an unfair, undue tendency to decide something at issue on an improper basis; includes any of the following
1. Biases the jury
2. Wastes court’s time (repetitive, etc).
3. Confusing
4. Jury will improperly associate it w/ something
ii. Probative = reasonable probability it will tend to prove something
iii. Substantial = more than 51%
iv. Weight of the Evid: power of the evidence

Process of Admitting Evidence

Judge makes the determination of whether or not something is admissible

i. Judge must assume that the jury believes the evidence
ii. Asks “Would this evidence (assuming the jury believed it) help the jury make a decision in this case?”
1. If yes, the evid. would help them make a determination: admissible
2. If probative value substantially outweighed: inadmissible
a. EX: bringing in 50th videotape of a crime. Not very probative because there are so many other accounts; prejudicial b/c it’s distracting and there are so many copies already out there.

Jury ultimately determines the weight that the evidence is given and makes ultimate determinations of FACT.

Modern Trend – presumption of favorability towards letting in relevant evidence.

Foundational Facts (basis for everything)
i. Judge must find beyond preponderance that the elements can even possibly be met.
ii. The jury determines if the foundational fact actually exists. (as fact finder)

Exam: first figure out if the statement is really hearsay.

Definition: “An out of court statement, offered for the truth of the matter asserted”

Statement is verbal, written or assertive conduct – conduct intended to communicate

i. Statement can be silence – look at circumstances
ii. Must be intended to be an assertion

Person who makes the statement is the “declarant”

Rationale for Exclusion: declarant can’t be crossed – can’t determine perception, memory, sincerity / oath, communication, etc.

Having a person repeat another’s out-of-court statement is a poor way for the jury to find out the truth about the subject of the statement


Look at what the statement is trying to prove – if not evident from the words itself

Ways to get around hearsay

Offer to prove that the words were spoken / statement has independent legal significance

i. Offered to prove the truth of the contents of the statement, but that it WAS said
ii. EX: libel / defamation, contract, duress, someone’s alive, etc.

To show effect on the hearer or reader

i. Person was on notice, or given warning
ii. Person was afraid, angry

To show declarant’s state of mind

i. Customers thought a product mfr’d by another company
ii. “I killed X’s dog” to show that declarant probably hated X

Exceptions – all foundational facts must be established for exception to apply

i. FRE divides into Hearsay Exceptions and Non-Hearsay.
ii. Multiple hearsay – each layer must have an exception or exemption to ultimately be admitted

NOTE: if evidence comes in for one reason and not for another, the judge might give a limiting instruction telling jury they can only use it for a certain purpose

Tricky Examples

To convey it’s cold:

i. It’s very cold in here – Hearsay
ii. This is a great place for polar bears – hearsay
iii. I need to put on a sweater – not hearsay
1. Can circumstantially prove it was cold.

Rationale: all of the exceptions involve some reason why the statement is particularly likely to be accurate or truthful so that the impossibility of probing the original statements is not so harmful

Remember: Most of the time, Foundational Facts are found by the judge. Must reach 51%.

FRE: Judge can consider anything, even if inadmissible
CA: Usually can only consider admissible evidence in making determination

There are some exceptions where Juries make FF findings

Juries typically determine foundational facts of conditional relevancy (in order for A to be relevant, B needs to be true).



(most important / most frequently used)

When one party offers the statement of another party into evidence. Does not have to be against the party’s interest. So long as it’s relevant, it comes


Former Testimony

Testimony of a person in a former proceeding or deposition is admissible if:

Foundational Facts

Formerly testified in a formal proceeding
Declarant is now unavailable
Person against whom the testimony is being offered had the opportunity and similar motive to x-exam at previous proceeding

Need not actually x-exam

Must be the same issue
Must be the same parties

Someone else can satisfy if they had the same motive in x-exam

CA: Allows for predecessor in interest to satisfy opportunity to x-exam req.


Declaration Against Interest

Foundational Facts

Declarant unavailable

Must show you made good faith attempt to get person and failed. Incl. too far away.

At time made, it was against the pecuniary (financial) interest of the declarant or would have subjected the declarant to criminal liability.


Can be made by 3rd party, need not be in the suit
Statements that minimize declarants role in a crime might not count – look closely to see if it actually limits criminal liability
Evid. of pleading the 5th is not against interest


If statement is offered to exculpate the accused (showing someone else confessed) there must be corroborating evidence to support trustworthiness


No need for corroboration if blaming someone else
Extends to declarations that hold a person up to scorn or disgrace in the community that a reasonable person wouldn’t say unless true (I’m a bad father; I cheat)
Requires declarant have sufficient knowledge on subject

Ex: I shot her, I stole, I caused accident, I owe $, I was negligent, it wasn’t him (suggests you know about it and might be involved! – Admissible if corroborated)