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

Relevancy and Its Counterweights
I.       Relevant evidence
i.        Analysis – Is a piece of evidence relevant? ()
(A) 401 – Does it make an issue in the case more or less likely?
(B) 403 – Is its probative value outweighed by its prejudicial effect?
(C) 404 – Is it character evidence?
(1)   405 – If the evidence is admissible as character evidence, is it of the proper form?
(D) 406 – Is it habit evidence?
(E)   Is it a series of similar happenings?
(F)   407 – Is it a subsequent remedial measure?
(G) 408 – Is it a compromise or an offer to compromise?
(H) 409 – Is it a payment of medical or similar expenses?
(I)     410 – Is it a plea or discussion of a plea?
(J)    411 – Is it evidence of liability insurance?
(K)412 – Is it evidence of a rape victim’s past sexual behavior?
(L)   413 – Is it evidence of similar crimes in a sexual assault case?
(M)414 – Is it evidence of similar crimes in a child molestation case?
(N)413 – Is it evidence of similar crimes in a sexual assault or child molestation civil case?
(O)104(a) – Is it for the judge to determine admissibility?
(P)   104(b) – Is its relevancy conditioned upon a fact supported by evidence sufficient to support a finding of the condition, such that the jury should be allowed to determine its relevancy?
(Q)105 – Should a limiting instruction be given?
ii.      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) 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.
(B) See Knapp v. State; Sherrod v. Berry
iii.    FRE 402 – Only relevant evidence is admissible (what is the evidence being offered to prove?)
iv.    FRE 104 – Who makes the call on relevancy?
(A) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissible of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(1)   CEC § 403(a)(4) – The proponent of the offered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when the proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.
(2)   Admissibility determinations that hinge on preliminary factual questions are to be established by a preponderance of proof. The evidentiary standard is unrelated to the burden of proof on the substantive issues, whether it is a criminal or civil case. Judges may look at hearsay and statements and items not yet admitted into evidence to make the determination of admissibility. Must look at the circumstances of a statement to determine its reliability. See Bourjaily v. U.S.
(B) however, when the relevancy of the evidence is conditioned upon a fact, the jury gets to hear it and determine how relevant it is. Huddleston v. U.S.
v.      FRE 105 – Limit

actually in controversy, and the probative value is not outweighed by its prejudicial effect. Nev. Rule: there must be clear and convincing evidence of the bad act. See Tucker v. State Huddleston???
·        To show ∆ acted in preparation to commit a crime
·        To prove the existence of a larger plan, scheme, or conspiracy (this may be to show motive, intent or identity)
·        To show a passion or propensity for unusual/abnormal sexual relations.
·        To show the absence of mistake or accident
·        To establish motive or knowledge (as when demonstrated by trying to obstruct justice or avoid punishment). See U.S. v. Cunningham (motive);
·        To establish opportunity (i.e. access to or presence at the scene or possession of distinctive or unusual skills or abilities employed in the crime)
·        To show that ∆ acted with malice, deliberation, or the requisite intent
·        To prove identity (usually: that there was a larger plan, an earmark, or motive). (“Signature” (modus operandi) evidence must be “sufficiently unique and sufficiently similar”; U.S. v. Carillo)
·        (see also, 405(b), to prove an essential element)
·        (also, to impeach by contradiction; U.S. v. Copelin)
·        (see also, 608(b), to impeach a witness’ character for truthfulness on cross-examination)
FRE 405 – Proof of character evidence, where admissible, may take the form of: