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

Park Evidence Fall 2014


Is it relevant?

Fill in the definition.


Legally? 403? Great deal of impact on jury?


· Prior, subsequent occurrences.


· Offered as part of the case

o Character evidence is not admissible to prove conduct. Because you did something before, doesn’t mean you did it now. But there are exceptions. So, unless its required as:

§ Element of the crime

· Defamatory to reputation

§ Defense of the crime

§ Habit

· Repeated response to a specific situation. Look for routine, practice, custom, “often” “always” frequently, repeatedly. Think of reflexive, automatic responses. Always drinks, but drinks is not specific, unless its one beer, every Friday at a specific bar.

§ Criminal exceptions:

· If the defendant opens the door. The prosecutor can rebut. But the rebuttal has to address what was given when the door was opened.

· Prosecutor Rule, offering to show KIPOMA. Motive, plan, knowledge, scheme. Its not to show conduct, its to show KIPOMA. Remember 403.

· Rape Shield – cant say she’s a whore.

· Offered for impeachment


· Authentication

· Testimony




· Lay

· Expert


Does it move the needle?

· What fact is it offered to prove?

· Does it help prove what it is offered to prove? Is it helpful?

· Is the evidence of consequence? Does it make a difference? Is it a disputed fact?

Is the relevancy outweighed by prejudicial effects?

· Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

· Even if it is relevant, it can be excluded if prejudice. Telling about a past assault may cause the jury to convict for this similar case.

· If there is no alternative, it may get in.


· You cannot show a propensity, but you can show past acts to show knowledge.

Criminal Cases

· D, when on 187 trial, may offer pertinent trait of character of V, if V had a character of violence.

· Has to be in the form of reputation and opinion testimony

o Not in the form of specific acts

o This opens the door for the prosecution.

§ Mercy Rule: defense can provide character witnesses, but it opens the door to the prosecution.

· IN CA, past DV is admissible

· If character is an element of the case

o KIPPPOMIA 404(b)(2) – bad acts are admissible for another purpose

§ Knowledge

§ Intent – consciousness of guilt; shooting a cop after you kill the POTUS

§ Preparation

§ Plan

§ Opportunity

§ Motive, handiwork, sex crimes, arson, cruelty, joy, compulsion

§ Identity

§ Absence of mistake.

§ This list is not exhaustive

· Prerequisites for admission of other crime evidence:

o If it is offered for non-character purpose

o Does not prejudice

o There is sufficient evidence that D was guilty of the other crime

This is a 104(b) question – is there evidence sufficient to support a verdict.

Rule 104 – Preliminary questions

When the perquisite is whether the foundational fact has been established; has the witness been qualified? Does a privilege exist? Is the evidence admissible?

(a) – sufficient to support

· Whether the Miranda warning was given, and there is a factual dispute. The judge will decide this.

· Consent to search?

· Excited utterance

· Attorney/ Client privilege- where sign above phone say phone call are monitored.

(b) – preponderance , the jury would decide this.

· Dispute whether the facts are true

· Dispute whether the fact is relevant

· Is that the defendants signature on the K

· Did the email come from the defendant.

Is it a 104(a) question or a 104(b) question?

· Go to the blackboard slide

· Definitional Approach

· Definitional Approach: (b) when the only basis for objection is; unless the preliminary fact has not been established.

Admissibility under 104

· Policy Approach: (b) if no danger of prejudice, then 104(b) applies.

· (a) preliminary fact has not been established, there is another reason; A/c privilege.

· Policy Approach: (a) if there is a danger of prejudice, then judge should decide. Miranda ex: jury might find the statements should be allowed, because you cannot unring a bell

104(b) question: whether the D sent the letter or was driving the car. Jury decides, questions of facts. There is still minimal screening by the judge.

104(a) question: reason of policy; was Miranda given. Relevant but excluded for reasons

Lewinsky’s BJ wasn’t admissible in P Jones case; wasn’t a prior crime, it was consensual BJ.

If there was a prior sex battery, then yes.

Rule 407 – Feasability.

You cannot admit evidence of subsequent or remedial change when attempting to show feasibility of precautionary measures or to impeach.

The TUER definition of feasibility challenge includes all of the below

· Physically impossible (its impossible for a spark free widget)

· Economically impossible

· Would likely cause paramount harm to patient

Repairs made after the fall, would not be admissible under Rule 407. Think policy; this would stop people from making repairs.

Settlement Language

Rule 408 Compromise offers and negotiations – Settlement language not admissible, except to show bias, prejudice, criminal obstruction. Not admissible to impeach.


· be a dispute

· attempt to settle

Cannot be used to show liability

Can be used to show bias

408 doesn’t include business negotiations, it includes legal negotiations.

Rule 409 – (Mercy Rule) Offer to pay medial expenses is inadmissible. Unlike 408, it only covers the offer to pay medical expenses.

Rule 410 – Plea Discussions are inadmissible. Only with D.A. talks. This right can be waived.

· Withdrawn guilty pleas

· Nolo plea

· Statement during withdrawn or nolo plea

· Plea discussions with prosecutor.

· Can be waived

Rule 411 – Having liabilty insurance is not admissible to prove negligence. May be admitted to prove ownership, agency, bias (statements made by insurance company investigators; “isn’t it true youre working as an investigator for the defense).


· What is it offered to prove?

· If the truth, then look for an exception.