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

I. Relevance and Its Counterweights
A. Relevance to What?
1. FRE 401: “Relevant Evidence” means 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. Federal Rules: need not be disputed fact.
b. Cal. Evid. Code § 210: must be disputed fact to be relevant.
2. FRE 402: All relevant evidence is generally admissible. Evidence that is not relevant is not admissible.
3. Three Questions to Screen Evidence for Relevance / Determine Probative Value:
a. What does the proponent offer the evidence to prove or claim that it proves?
b. Does it help establish that claim?
1) May help establish an ultimate fact or an evidentiary link in a chain of proof (“a brick is not a wall”).
c. Is it provable in the case?
1) Substantive or procedural law may dictate whether it is provable.
4. Relevance and Inference
a. Facts that Discredit Claim of Belief
1) Knapp v. State: In support of self-defense theory, D testified that he feared V because he had heard that V clubbed an old man to death. Court allowed P to rebut this assertion with evidence that the old man in question died of senility and alcoholism with no evidence of beating. The issue was whether D in fact had heard the story; P’s evidence coupled with D’s inability to indicate his source made his story less credible. If there was no beating, it was less likely that D had heard about a beating.
2) Sherrod v. Berry: Police testified that they shot V because he made quick movement like he was reaching for a gun. Court excluded evidence that no gun was found on V’s body as irrelevant and prejudicial to determining what the officers reasonably believed at the time of firing their guns.
b. Harmless Error: error which was not prejudicial to the substantial rights of a party and in no way affected the outcome of the case.
c. Prejudicial Error: error which affected the final result of the case and was prejudicial to a substantial right of a party.
d. Offer of Proof: Party makes a showing (generally out of the presence of the jury) as to what the proffered evidence intends to prove in order to get the proffered evidence into the record for appellate review.

B. Probative Value Versus Prejudicial Effect
1. FRE 403: Although relevant, evidence may 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.
2. Cal. Evid. Code § 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.
3. Permitted Use v. Forbidden Use considering Alternatives
a. Old Chief v. U.S.: Trial court abuses its discretion by admitting an otherwise relevant full record of a prior judgment against a party that is offered to prove an element of the current charge if the party has conceded the fact, the name and nature of the prior offense raises the risk of unfair prejudice, and the purpose of the evidence is solely to prove the element of the prior conviction.
b. “Unfair Prejudice”: Capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged, or an undue tendency to suggest a decision on an improper basis.
c. Party’s Right to Prove Its Case by Evidence of Its Own Choice
1) D may not stipulate or admit his way out of the full evidentiary force of the case as P chooses to present it.
a) P may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to fulfill the jury’s expectations, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of D’s legal fault.
2) 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.
d. Alternatives
1) Does the alternative have the same probative value as the first option? If not, is the prejudicial effect of the first option worth its greater probative value compared to the alternative’s probative value?
2) Examples: stipulation, limiting jury instruction, less-gory or less-emotionally charged photos or video, objective financial or other records.
4. Weighing Credibility of Evidence
a. Ballou v. Henri Studios: The factfinder considers the credibility of evidence to decide whether to believe it. Court weighs probative value versus prejudicial effect as if the evidence were true, not considering credibility.
C. Character, Habit, and Custom
1. FRE 404(a): Evidence of a person’s character or trait of character is generally not admissible for the purpose of proving action in conformity therewith on a particular occasion, except (these generally only apply to criminal cases):
a. FRE 404(a)(1) “Mercy Rule”: 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)].
b. FRE 404(a)(2) Character of Alleged Victim: Accused may offer evidence of pertinent trait of alleged victim’s character, and prosecutor may offer evidence in rebuttal. 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.
1) FRE 405(a) Type of Evidence Allowed: Accused’s evidence and prosecutor’s rebuttal evidence may only be in the form of reputation or opinion. On x-examination, though, inquiry is allowable into specific instances of conduct.
a) Michelson v. U.S.: On x-exam, a party may inquire whether a witness who testified to D’s reputation was aware of prior arrests or other specific incidences. X -exam may attempt to show that the witness has a low standard of “good character” or is otherwise unreliable, but may not present witness with questions that he would have no way of knowing (e.g., secret grand jury testimony or entirely fabricated incidences).
c. FRE 404(a)(3) Character of Witness: Evidence of witnesses’ character may be admitted under FRE 607-09.
2. Character in Issue
a. Cleghorn v. NY Central: Evidence of an employee’s intemperance allowed to support punitive damages because it showed the employer’s fault for knowingly employing a risky employee. It could not be used to prove that the employee was drunk on a specific occasion, though.
b. FRE 405(b): In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
1) “Essential Element” = ultimate issue, not to draw an inference (e.g., truthfulness in defamation case, fitness as a parent in custody dispute).
3. Character as Circumstantial Evidence
a. FRE 404(b) Prior Bad Acts to Prove Something Other than Character: Although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, it may be admissible for other purposes, such as KIPPOMIA:

Knowledge (or consciousness of guilt)
Plan (or context of nearby or contemporaneous happ

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.
5. Habit v. Character
a. FRE 406 Habit, Routine Practice: 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.
1) Testimony concerning prior specific incidents of habit is allowed (need not be reputation or opinion).
2) Admissible in criminal or civil cases.
3) Some courts have allowed evidence of a person’s general disposition to be careful in order to show care at the time.
b. “Character”: generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.
c. “Habit”: more specific than character; it describes one’s regular response to a repeated specific situation. The doing of habitual acts may become semi-automatic (e.g., taking two stairs at a time or using a hand signal to make left turns).
6. Character of the Victim
a. Perrin v. Anderson (MIN rule on applying 404(a) exceptions to civil cases): The literal language of the exceptions to FRE 404(a) applies only to criminal cases, when the central issue involved in a civil case is in nature criminal, D may invoke the exceptions to FRE 404(a).
1) Nevertheless, character of the victim may only be proved by reputation or opinion testimony, not specific incidences (only on x-exam). Here, the court allowed the prior acts evidence to come in under the habit exception: based on eight incidences, V invariably reacted with extreme violence to any contact with a uniformed police officer.
b. FRE 404(a)(2) allows opinion or reputation evidence of V’s violent character to show that he was the first aggressor (and rebuttal evidence by P), or evidence by P of V’s peacefulness if D makes a self-defense claim.
c. FRE 404(b) allows anecdotal evidence of V’s traits of character to prove KIPPOMIA (e.g., that D feared V because of things that he had heard about V).
7. Rape Shield Laws
a. Almost all states and Congress (FRE 412) have adopted “rape shield” laws that limit the use of evidence of prior sexual conduct in sexual assault cases.
1) Evidence of reputation and sexual behavior is not admissible purely for purposes of showing unchaste character, as the basis for further inference that the complainant consented to sex on the occasion in question (FRE 412(a)).
2) Two widely recognized examples of admissible behavior are:
a) Complainant’s prior sexual behavior with D, as opposed to behavior with other persons (FRE 412(b)(1)(B)); and
b) Complainant’s sexual behavior with other persons, when offered for purposes of explaining the physical consequences of an alleged rape (e.g., injury, semen, pregnancy, sexually transmitted disease) (FRE 412(b)(1)(A)).