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

I.                   FRE 401—Definition of “Relevant Evidence”: 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.      FRE merges the old common law principles of “relevant” and “material” into FRE 401.
                                                              i.      Evidence can be sufficient, but this is different than relevancy.
                                                           ii.      Must increase the probability of a fact at least a little.
                                                         iii.      TWO Prongs:
1.       Must be pertinent: any tendency to prove what the lawyer is attempting to prove.
2.      Must be material: what is being proved has something to do with the case.
b.      FRE (very LIBERAL definition of relevancy) v. California:
                                                              i.      Federal Rules: need not be a disputed fact
                                                           ii.      Cal. Evid. Code § 210:  must be a disputed fact to be relevant.  (So, if the issue is liability and D admits liability, then no evidence about this is relevant since liability is no longer disputed.  It would only be relevant for punitive damages.)
1.       CEC §210- “Relevant evidence” means 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.
II.                FRE 402:  All relevant evidence is generally admissible.  Evidence that is not relevant is not admissible.
a.      3 questions to ask to see if evidence is relevant:
                                                              i.      1) What fact do you say the evidence proves?
                                                           ii.      2) Does the evidence help prove that fact?
1.       The evidence only has to help—it doesn’t have to be conclusory.  “A brick is not a wall, but it can help build a wall.”
                                                         iii.      3) Is the fact actually provable in the case? (by PROCEDURAL and SUBSTANTIVE rules)
1.       Ex: in a tort case, you cannotuse facts to prove D’s wealth because that is not allowed under the substantive law.    Also, you can’t try to use facts/evidence to prove duress if you forgot to raise it in original pleadings.
b.      Knapp v. State:  D claims that he killed X in self-defense because he heard that X beat an old man to death the week before.  State was allowed to rebut this assertion by proving that the old man actually died of senility and alcoholism and there were no bruises or marks on his body. The issue was whether D in fact had heard the story; State’s evidence coupled with D’s inability to indicate his source made his story less credible.  Evidence that no such beating took place is relevant to question of whether D actually heard what he claimed to hear and makes it slightly less likely someone actually told D same.
c.      Sherrod v. Berry: A police officer shot and killed a man because he made a quick motion into his coat as if he was going to reach for a gun.  The court excluded evidence that he was actually unarmed because this had nothing to do with the police officer’s reasonable belief that he did have a gun.  (irrelevant and prejudicial).
                                                              i.      But, Park disagrees and he thinks it does meet the liberal relevancy test of 401.
a.      Federal v. California
                                                              i.      FRE 403: Thus, even if evidence is relevant, it can still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 
1.       Note: unfair prejudice, within this context, means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.  Usually coupled with the danger of prejudice and confusion of issues.
                                                           ii.      CEC §352: Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
b.      Old Chief: Old Chief was arrested for assault with a deadly weapon.  He had previously been convicted for assault causing bodily injury and thus was not allowed to carry a firearm.  But, he believed that revealing the nature of his prior crime would be prejudicial, so he offered to stipulate to the fact that he had a prior felony.  P wants to tell the jury exactly what his prior conviction was for.  HOLDING: the evidence should be left out because it is far too prejudicial.  There were reasonable alternatives for the prosecution to meet its burden of proving the crime with less prejudicial effect: 1. All prosecution had to prove was whether D was a prior felon and 2. Legal status could be proved by the D’s stipulation.
c.      When considering prejudice, the judge should consider 3 things:
                                                              i.      What is proper purpose for which evidence might be offered?
                                                           ii.      What is the danger that the jury will use the evidence for a forbidden purpose? 
1.       e.g. using the information to show that Old Chief committed a prior felony vs. that he had a predisposition to commit the crime
                                                         iii.      Can an “Alternative Means” achieve the proper purpose?
                                                          iv.      ex: P wants to show a video at trial of X on his deathbed showing his family saying good-bye to him because D killed him.
1.       Proper Purpose of evidence: shows the family loved X and that X wanted to support them.
2.      Dangerous Purpose:  might make the jury too sympathetic and they might award excessive damages for grief.
3.      Alternative to the Video:  Use other facts to show the closeness of the family like that X went to all soccer games and show his bank accounts to prove that he wanted to support them.
d.      But, normally, you CANNOT stipulate your way around facts—P has the right to tell its case as it wants.  We don’t want to deprive the court of evidence’s fair and legitimate weight: Parr v. United States
                                                              i.      Evidence tells a rich colorful story. “A syllogism is not a story”
                                                           ii.      We don’t want to leave out things because it could distort the evidence and preclude witnesses from testifying naturally.
                                                         iii.      Juror’s expectations must be filled. E.g. jurors want to see the gun
                                                          iv.      Evidence can have unforeseen relevance
1.       Exception: 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. [Old Chief] 2.      Example:  P sues D for killing her husband with his car when the husband was walking along the street.  D admits liability, but P still wants to put in evidence that she was driving while intoxicated and that husband was thrown 80 feet.  D objects and says this is irrelevant.
a.       In CA, this isn’t disputed, so it would be irrelevant, but it would be relevant under FRE (because it is a fact of consequence and is “of consequence to the determination of the action”- civil suit for liability maybe negligence).  So, it is relevant.  Next ask, it is prejudicial?  D would claim that this could influence the jury to give an excessive award.  But, this evidence is part of telling a colorful story (Old Chief), and it might be hard for the jury to find X liable since they haven’t felt the impact of what has happened.
e.      Weighing Credibility of Evidence—In weighing evidence and determining the probative value vs. prejudicial effect, the judge can NOT make credibility determinations, that is for the jury.
                                                              i.      Ballou v. Henri Studios:  Ballou was killed in a car crash.  The court incorrectly excluded evidence of Ballou’s blood alcohol level (0.24) because it conflicted with a nurse’s testimony that she didn’t notice that he was drunk just minutes before the accident.  The judge excluded the BAC evidence because he didn’t find it credible—this was the wrong decision!!
1.       The court should determine the probative value of evidence assuming that it IS true.  The jury is the only body to make credibility determinations.
CHARACTER AND HABIT [More definite rules about prejudice than 401 and 403] I.                   Generally
a.      Reasons to exclude character evidence even though it is relevant:
                                                              i.      Inferential Prejudice:  “Fundamental Attribution Error”—jury puts too much weight on character information and it skews their view ignoring present facts.
1.       Once a thief always a thief – ignoring the facts that he might no longer be
                                                           ii.      Nullification Prejudice: the jury might decide not to follow the law and just convict the guy because he is evil. – Nullifying the underlying substantive law and just convicting
                                                         iii.      Wastes Time:  it wastes time to go into collateral issues.
1.       Generally, you can’t use character to show conduct unless it falls under an exception (there are NO exceptions in civil cases, only criminal)
b.      Rule 404(a): Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion.
                                                              i.      Prohibited: Evidenceà to prove character à to prove conformity with past action. (he lied in the past, he is a liar, he embezzled these funds).
                                                           ii.      Allowed: KIPPOMIA- Use evidence to show something OTHER than character (like knowledge- KIPPOMIA)
1.       Ex: D has pot plants growing at home, but he claims that he thought they were just weeds.  P wants to show that D sold pot before so he knows that this was pot.  The evidence is admissible to show knowledge, but NOT admissible to show that D grows pot because he has in the past.
2.      Cleghorn v. NY: P wanted to introduce evidence of D’s drunkenness after he failed to close the track of a train and then signaled to another train that it was okay to proceed.  This was negligent.  P can prove that D was drunk at the time of the incident and that he was a man of drunken habits and that this was known by his employer.
a.       It is OKAY to use evidence to show character to show the employer’s negligence in hiring this employee (this is using evidence to prove something other than character). They had knowledge of his character when they hired him
                                                         iii.      Allowed: Character at issue- Not showing conformity therewith
1.       You CAN use character evidence to prove an “essential element/ultimate issue.”  You can do this because you aren’t taking any additional step, and no further inferences need to be made.
2.      Ex: unfit parent, fit character to be admitted to the bar, slander/defamation
a.       Here the character is at issue so it is admissible
c.      You CAN use character evidence to prove character in the following circumstances:
                                                              i.      Rule 404(a)(1):  “Mercy Rule:” In a criminal case, the accused may bolster his defense and offer evidence of a pertinent trait of his character.  Once the accused opens the door, though, prosecutor may rebut the evidence.  Accused also opens the door to a character attack on himself regarding the same character trait of an alleged victim that he attacks under FRE 404(a)(2) [but not when he attacks the victim as a witness under FRE 404(a)(3)]                                                            ii.      Rule 404(a)(2): Character of Alleged Victim:  In a criminal case, the accused may offer evidence of pertinent trait of alleged victim’s character, and prosecutor may offer evidence in rebuttal.  –  BOUNDED BY FRE 412 RAPE SHIELD LAWS
1.       E.g. Defendant in a homicide case may claim self defense and allege that Victim was the aggressor and had a violent character.  Prosecutor may offer evidence of a character trait of peacefulness of the alleged victim in a homicide case to rebut evidence that the victim was the first aggressor.
                                                         iii.      Rule 404(a)(3) Character of Witness: Evidence of witnesses’ character may be admitted under FRE 607-09.
1.       Credibility o

hall determine preliminary questions (subject to FRE 104(b))—without being bound by the rules of evidence except those with respect to privilege—concerning:
a.      Qualification of a person to be a witness;
b.      Existence of a privilege; or
c.       Admissibility of evidence.
                                                                                                                                      i.      For example: factual foundation for a hearsay exception, admissibility of a confession (whether proper Miranda warning was given), any evidence where the policy of keeping potentially prejudicial testimony from the jury unless it is admissible (can’t “un-ring the bell” – would the jury consider it even though they find it to be unsubstantiated?).
                                                                                                                                    ii.      Legal Standard: preponderance of the evidence (must convince the judge).
2.      FRE 104(b) Relevancy Conditioned on Fact:  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
a.       Legal standard:  Sufficient evidence to support a finding (enough for a reasonable jury to find the conditional fact by a preponderance of the evidence, considering all the evidence before the jury), but the judge need not believe the evidence
                                                                                                                                      i.      Policy: if the only issue is that the evidence could be irrelevant, then we trust the jury with it because if they find condition not met they will disregard it and not hold it against either party.
                                                                                                                                    ii.      It goes to the jury if relevancy is at issue.
b.      Huddleston v. US:  The court’s preliminary findings of fact don’t depend on if P proved the prior bad act evidence by a preponderance of evidence under FRE 104(a).  Rather, the question is in the FRE 104(b) context:
                                                                                                                                      i.      Similar act evidence is relevant if the jury can reasonably conclude that the act occurred and that D was the actor (under FRE 104(b)).
c.       This all must pass the 403 balancing test.  One of the factors the court can consider is the strength of the evidence that establishes the similar act.
                                                                                                                                      i.      If the strength of the evidence is weak, this weighs against admitting it.  This is a good D argument.
d.      Other Crime Evidence Offered Against a Defendant Who Was Acquitted of the Other Offense:
                                                                                                                                      i.      Is it being used for a permitted Purpose (404(a) exceptions or 404(b) not character evidence.)
                                                                                                                                    ii.      Does it Survive Balancing (403 balancing).
                                                                                                                                  iii.      Is there Sufficient Proof of prior crime(could have been reasonably committed).
1.      Even if acquitted there might be enough evidence that it is OK to tell the jury – Dowling v. United States
III.             Habit v. Character:
a.      Rule 406: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
                                                              i.      Testimony concerning prior specific incidents of habit is allowed (need not be reputation or opinion).
                                                           ii.      Admissible in criminal or civil cases.
                                                         iii.      Some courts have allowed evidence of a person’s general disposition to be careful in order to show care at the time.
                                                          iv.      Requirements: Specific, routine, and continuous
b.      “Habit:” is when you repeat certain narrow conduct in the same way and it becomes semi-automatic.
                                                              i.      Halloran v. Virginia Chemicals: P is a mechanic and was injured while using a refrigerant packaged and sold by D.  You are not supposed to use an immersion coil to heat the can of Freon.  D was allowed to admit evidence that P used an immersion coil hundreds of times to heat the Freon—this was habitual.
1.       Some other examples include: Other examples include: when a nurse takes routine blood sample, a business puts the right postage on a letter, a drinker gets drunk at a particular club, always taking stairs two at a time.