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

Roger Park Evidence Spring 2014 UC Hastings



1. Background

a. Before 1975, evidence law was largely decisional law, in case opinions collected/explained in treatises

b. SCOTUS was concerned about this method, so they appointed advisory committee, which prepared set of rules

c. Congress then passed a statute keeping the rules from going into effect

i. Issues: allowed for too much executive privilege, failed to provide for doctor-patient privilege, had a liberal approach to admission of hearsay

ii. Congress then rewrote rules and enacted them in 1975

a) So FRE are largely from Congress, but SCOTUS can promulgate, Congress can then restyle/rewrite (6 mo waiting period for Congress to object)

2. Goals

a. Finding truth

b. Satisfying parties (sometimes predominates)


1. FRE 401: Test for Relevant Evidence

(a) Evidence is relevant if it has any tendency to make a fact of consequence more probable than without the evidence AND (b) the fact is of consequence in determining the action

a. Evidence doesn’t need to be conclusive/persuasive, just has to move the needle a little bit (minimally relevant)

b. Questions to ask to determine:

1. What is the evidence offered to prove?

2. Does it help establish that fact?

3. Is the evidence of consequence in the action?

c. Two things to show that evidence is not of consequence

i. Fact sought to be shown makes no difference under the law

a) Pg. 75: relevancy is not inherent; exists in relation to evidence

ii. The law pretrial procedure might forbid raising the issues

a) i.e. contract issue: duress – affirmative defense so can’t put in evidence of it if you lost that defense by not bringing it up earlier

d. CEC §210: relevancy test hinges on whether the fact is in dispute (i.e. parties are not disputing liability à evidence of liability is not relevant b/c no fact in dispute)

2. FRE 402: General Admissibility of Relevant Evidence

All relevant evidence is admissible, except as otherwise provided by the Constitution, federal statute, these rules, or other rules prescribed by Sup Ct. Irrelevant evidence is not admissible.

3. FRE 403: Excluding Rel Ev for Prejudice, Confusion, Waste of Time, or Other Reason

Ct may exclude relevant evidence if its probative value is substantially outweighed by danger of one or more of following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

a. Questions to ask:

i. Value/proper purpose

ii. Danger/forbidden purpose

iii. Alternatives

b. Jury will either give too much weight to the evidence OR decide the case against the law bc they’re inflamed by the evidence

c. If it’s a 50/50 split, you ADMIT the evidence – prejudice must SUBSTANTIALLY outweigh probative value

d. CEC §352: California equivalent

4. Knapp

a. F: D claimed self-defense for killing town marshal, feared for his life based on rumor of the marshal beating a guy to death BUT other guy actually died another way

b. R: evidence is relevant when it tends to prove or disprove an issue at trial

c. A: this suggests D may not have heard rumor at all; thus, evidence of how he did is relevant

i. (1) What is the ev offered to prove? Ev = no beating à D not told of beating

ii. (2) Does it help establish that fact? No—doesn’t prove that he didn’t hear it. Yes—makes less likely that he would have heard that; truth telling predominates; if was beating, increases the chance that he would be told about it.

iii. (3) Is the evidence of consequence in the action? Yes—if not told that there was a beating, that would decrease reasons for using deadly force.

iv. (4) Rule 403—Is this helpfulness outweighed by prejudice, confusion, waste of time? Not outweighed or conclusive, but relevant.

d. C: Evidence was admissible bc it went to the credibility of the defense; brick is not a wall

5. Sherrod

a. F: Officer shoots robbery suspect bc he was reaching in coat like he was reaching for weapon

b. R: We don’t have to believe the disputed testimony is true; instead we weigh the testimony on both sides and decide whether an error in admitting/not admitting evidence could have influenced the verdict

c. C: This was a reasonable belief, so the evidence that he had no weapon is irrelevant

d. Per Park: minimally relevant—difference in how you reach for license v. weapon


1. Old Chief

a. F: D had record of assault w/ serious bodily injury; not allowed to possess firearm but had one. D wants to stipulate to record and just have the jury told he has a felony. Gov’t wants to tell the jury what the felony was.

b. R: FRE 403 if status is element of crime à prejudicial to present if D agrees to stipulate

c. A: prejudicial bc jury might decide to convict bc did it once so likely to do it again OR bc bad person OR jury will give too much weight to that evidence

d. C: Weighing the evidence for Old Chief: normally prosecution can prove the case the way they want to, but this case is distinguishable (doesn’t really matter what the specific felony was)

i. Why have tell about felony? Why can’t just tell jury he satisfied elements of statute?

a) Usually, the prosecution is entitled to present evidence in the manner they want to

1) Jury expectation (nullification, prosecution distrust)

2) What if firearm was assault rifle? DA should be able to use bc richly narrative

e. Parr: charged with possession of porn with intent to distribute

i. F: D wants to stipulate to it being porn and then denies the possession. Prosecution wants to show the porn

ii. A: Proper purpose: establishes element of crime (showing that its pornographic). Forbidden purpose: law applies whether minimally or greatly pornographic; might prejudice jury—guilt by association/nullification. Alternatives: instruction by judge.

iii. Why allow/how different than Old Chief?

a) Prosecution entitled to tell rich story; helps mustering jury’s courage to convict; disappointing jury expectations; might have further evidentiary value

2. Ballou:

a. F: Conflicting evidence: nurse says he wasn’t drunk; blood test says he had a .24 BAC—judge excluded blood test bc thought unreliable

b. A: Not judge’s job to weigh evidence; abused discretion and didn’t properly apply FRE 403

c. C: Reversed. When determining if evidence is prejudicial, court can balance the probative & prejudicial value, but should assume that evidence is true. Jury determines evidence’s credibility & reliability.



a. Inferential error prejudice: use of past conviction to affect the current conviction à gives character trait too much weight in predicting what a person might do (ex. once a thief always a thief); problematic b/c character varies according to situation/context

b. Nullification prejudice: jury may disregard the law after hearing character evidence

c. Cost & waste of time: avoid litigating on collateral issues (and confusion & surprise) / would be wasteful to go through all the events of a perso

d. Rationale: Court has discretion to exclude evidence of remote events that might discredit the character witness’ credibility; impeach witness if they are not qualified to comment.

e. Changes to law since Michelson:

i. Now allowed to be asked about opinion in addition to reputation

1) Cross can ask “do you know” in addition to “have you heard”

2) Reputation among associates at work = admissible

3. Carrillo

a. F: D dealing drugs in balloon packaging (and mouth)

b. R: evidence/modus operandi of prior crimes used to prove identity of accused must have such a high degree of similarity to present crime as to make it handiwork of accused/unique to D

c. C: should not have been admitted bc method=common and not unique to D

4. US v. Torres-Flores

a. F: D accused of assaulting border patrol officer. Evidence introduced D arrested at same border checkpoint on prior occasions.

b. A: D admits to being in area; prev in same area=more likely in area for present crime

c. C: Nothing unusual/unique, but ct held this could be used to show D committed crime.

5. CA Constitution Art 1§28

a. Right to Truth-in-Evidence: relevant evidence shall not be excluded in any crim proceeding

6. Beasley

a. F: D convicted for distribution of drugs and challenges court’s decision to admit evidence of D’s other drug related crimes.

b. R: 404(b) does not allow use of specific acts to show propensity, thus evidence of a pattern of similar crimes is not admissible to prove that, on a particular occasion, an accused has acted in conformity with past crimes. Also, a judge must evaluate whether the evidence is sufficiently probative to outweigh danger of prejudice

c. A: The evidence may be used to show intent, to show he did not obtain the drugs for his experiment, but this has a prejudicial effect on the jury bc they may punish for prior offenses

d. C: cannot use drug crimes to show propensity

7. Cunningham

a. F: D nurse accused of stealing demoral, and sought to exclude evidence of her prior demoral addiction and prior thefts

b. R: Ev of prior bad acts may be admissible; here, addiction is a sign of motive, not character, although there is overlap

c. A: Ev that D stole demoral in past can’t be introduced to show likely to steal it in the present, but her prior conduct may be used to show motive to tamper with the syringes.

d. Two types of motive evidence that is admissible (not propensity evidence)

i. Cases in which the prior crime and the charged crime are motivated by the same desire or compulsion (Cunningham)

ii. Cases in which a prior committed with a different motive causes the motive for the charged crime to arise (killing witness to robbery when wit cooperates w/ police)

e. They do overlap when the crime is motivated by a taste for engaging in that crime à evidence of any unusual desire that would cause one to commit the crime in question can show motive