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

I)        Relevance
A)     Evidence relevant to issues in the case
1.      Relevance: an item of evidence that tends to prove or disprove a disputed fact.
(a)   Relevancy is the first issue in almost all evidence questions because relevancy is the primary basis for admitting evidence.  The two rules are:
(1)   ONLY relevant evidence is admissible; and
(2)   ALL relevant evidence is admissible unless there is a legal reason to the contrary (e.g., rule against hearsay)
(b)   Steps for admissibility
(1)   One must first determine whether evidence is relevant:
(i)      Is the evidence material? (directed toward a matter in issue)—relevant to what?
(ii)    Is the evidence probative? (tends to prove or disprove a matter at issue)
(2)   Next, is there some legal rule that excludes the evidence?
Discretionary exclusion of evidence if it is unfairly prejudicial, confusing, etc. [FRE 403] Rules restricting the admissibility of character evidence [FRE 404-405] Extrinsic policies that justify excluding the evidence (subsequent repairs, liability insurance, etc). [FRE 407-411] The hearsay rule and all other “technical” exclusionary rules of evidence. [FRE 801-802] 2.      Materiality—whether or not the fact is an issue in the case.
B)     Relevance and Inference
1.      Probative Value—Besides being material, relevant evidence must be probative. This means that it must logically tend to prove the proposition for which it is offered. The evidence need not be determinative; it need only make the fact to which it is directed more likely than it would be without that evidence. If the evidence would support an inference of the ultimate fact to be proven, for example, it is probably sufficiently probative to be relevant.
2.      Slight Inference Rule: Even if a slight inference can be made, the court should admit evidence of a collateral fact. Knapp v. State, 168 Ind. 153, 79 N.E. 1076 (1907), p. 79 (appellant claimed self-defense for a killing, claiming to have heard men talking about the victim beating an old man to death. The state allowed evidence showing that the old man died of senility and alcoholism.)
(a)   Inferences—It is not uncommon to rely on inferences to prove a case. The following areas are fruitful ground for inferences: ability and opportunity; motive; design; plan or scheme; intent; and mental and physical condition
(1)   Circumstantial evidence: The jury must infer,

(1)   OCS-non-first hand witness (I read, Joe told me).
(2)   OFT-Must be proving the truth of the statement (Joe told me he ran the red light. must be trying to prove that he ran the red light)
(3)   OCS and OFT must be equal. (ex. red light=red light)
2.      Basic Definition—FRE 801(c) and CEC 1200: “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 
(a)   Circumstantial Evidence-Hearsay is only hearsay is if you are only trying to prove the truth, but if you are trying to infer something else, then it is circumstantial evidence. The circumstantial evidence, however, must still be relevant.
Implied and Non Assertive Conduct-Under the modern California and Federal rules, these are not hearsay. It must be an assertive statement, either by words or conduct. Ex. “I saw her open her umbrella.” We can infer that it was raining. Bridges Case: