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

a.       History – Congress enacted modern FRE in 1975 and SCOTUS has authority to amend
                                                          i.            Originally SCOTUS appointed advisory committee to promulgate rules of evidence,  and congress passed a statute preventing the rules from going into effect due to their controversial nature
                                                         ii.            3 reasons why it was controversial – expansive rule of executive privilege, no doctor-patient privilege, contained a broad liberalization against the rule of hearsay
                                                       iii.            Congress bolstered hearsay rule to make it more exclusionary.
b.      Adoption – Majority of states have adopted FRE:
                                                          i.            Exceptions: NY, IL, CA
                                                         ii.            CA has own rules, NY does not have own rules but use common law
a.       FRE 401:  Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence
                                                          i.            Weakness Okay – Evidence is relevant if it increases probability at all but it does NOT have to be conclusive or strong to be relevant
1.       “'a brick is not a wall' but it can help build a wall”
                                                         ii.            Pertinent – Must be pertinent to what lawyer is trying to prove / must be material to what is being proved in the case (doesn’t have to be in dispute)
                                                      iii.            Questions to determine relevancy:
1.       What is it offered to prove?
2.       Does it help establish a fact, or make it more or less probable?
3.       Is it of consequence to the case?
                                                      iv.            Example:  When punitive damages are sought, it might be important to consider the wealth of the D – the fact is not of consequence in the action, but may be relevant in other means.
b.      FRE 402:  Relevant evidence is generally admissible unless another rule prohibits it / evidence that is not relevant is not admissible
c.       CEC 210:  Relevant evidence = 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.
                                                          i.            Under FRE – can be disputed or undisputed
                                                        ii.            Under CA rule – relevancy test hinges on whether the fact is in dispute
                                                      iii.            Under FRE – evidence must be of consequence, it does not have to be disputed
                                                      iv.            Example:  (bank floor plan) – The bank floor plan in a bank robbery is not admissible under CEC – b/c  it is not disputed, but under FRE it could be of consequence to explain the robbery.
                                                        v.            Example:  (car accident) – D wants to admit negligence.  Under CEC, liability is not disputed, so exclude evidence of negligence & only assess damages. Under FRE, the negligence might be of consequence to help prove the accident was more probable than not.
d.      Case:  Knapp v. State (1907) (relevant evidence makes any fact of consequence more or less probable)
                                                          i.            Facts:  Knapp (D) claims he murdered sheriff in self-defense because he heard the victim beat an old man to death so he had reason to fear for his safety.  State attempted to introduce evidence that the old man died of senility.
                                                        ii.            RULE:  Evidence is relevant when it tends to prove or disprove an issue at trial
                                                      iii.            Analysis:  The evidence that the beating did not happen is relevant to question whether the defendant actually heard what he claimed to hear.  If there was not a beating, it decreases the chance that D heard a rumor about the beating.
e.      Case:  Sherrod v Barry
                                                          i.            Facts:  Police officer shot suspect when he thought the victim made a sudden movement towards his gun.  (Similar to Samuel DuBose.)  Evidence that he was actually unarmed was excluded.
                                                        ii.            Analysis:  It is relevant that the victim was unarmed because it diminishes the probability that he was making a quick movement for a weapon.
a.       FRE 403:  Relevant evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice,  creates confusion or it is a waste of time
b.      The word substantially is significant, because it makes 403 balancing in favor of admissibility – if probative and prejudicial evidence is balanced, it is admissible.
c.       Balancing Test – Questions to determine if the evidence should be excluded:
                                                          i.            What is the probative value for proper purpose of the evidence?
                                                        ii.            Is there a danger evidence will be used for a forbidden purpose?
                                                      iii.            Is there an alternative way the party can include the information and accomplish the same purpose?
                                                      iv.            Does it carry prejudice that outweighs probative value?
d.      CEC 352:  Exclude evidence if the probative value is substantially outweighed by consumption of time, danger of prejudice, confusing issues, misleading the jury
e.      Case:  Old Chief v. US (1997) (syllogism is not a story)
                                                          i.            Old Chief requested the government refrain from introducing information about his prior felony, except to state he had been convicted of a prior felony.  The prosecutor refused the stipulation and insisted on his right to prove the case in his own way. 
                                                        ii.            RULE:  When status is element of a crime, it is prejudicial to present evidence about the status if D agrees to stipulate. 
                                                      iii.            The nature of D’s prior crime was too prejudicial & could cause the jury to convict the D for his prior offense due to “bad character”.  Here the risk of unfair prejudice outweighed the probative value of the record of conviction.  Prosecution is usually allowed to use evidence to convey the moral gravity of a crime, but here the P didn’t lose the “colorful narrative”/ disappoint jury expectations/interrupt the narrative by excluding the prejudicial evidence of the prior crime.
f.        Factual Stipulation Disfavored – Normally do not stipulate around facts, and the prosecution has the right to tell its case the way it wants – you don’t want to deprive the court/jury of evidence that is fair and has legitimate weight.  Also facts might be more relevant to witness credibility etc.
                                                          i.            Disappointing Expectations – if jury expects evidence and don’t get it, then they would hold that against the prosecution
                                                        ii.            Case:  Parr case

     (Ex: may convict on the present crime to punish for past crime)
                                                       iii.            (3) Cost and consumption of time – Avoid litigating on collateral issues / would be wasteful to go through all the events of a person’s life to decide their character
d.      FRE 404: Character Evidence is Generally NOT Admissible to Prove Conduct.
                                                          i.            FRE 404(a): Evidence of a person's character or a trait of character is NOT admissible to prove action in conformity therewith on a particular occasion 
1.       (Ex. he lied in the past, he is a liar, so he embezzled these funds)
2.       Exceptions -> FRE 404(a)(1)-(3).
                                                         ii.            Rare in Civil – Character evidence is rarely allowed in civil cases;  criminal D can offer character evidence to prove they didn’t commit the crime
                                                          i.            Accused Character:
1.       FRE 404(a)(2)(A): (“Mercy rule”): in a criminal case, the D CAN offer evidence of a their own pertinent character trait, and if the evidence is admitted, the prosecutor can offer evidence to rebut it. 
a.       No Specific Acts – Only opinion/reputation evidence regarding the same trait
2.       CRIMINAL CASES only
3.       Sex Offense Cases – Prosecution can offer evidence of accused character under 413 (sex offenses), 414 (child molestation), 415 (civil cases)
                                                        ii.            Character of Alleged Victim:
1.       FRE 404(a)(2)(B): in criminal cases, a defendant can offer evidence of an alleged victims pertinent trait and if the evidence is admitted, the prosecutor can (1) offer evidence to rebut it (2) and offer evidence of the defendant same trait 
a.       Ex. Accused can offer evidence of victims violent character (through reputation or opinion); prosecutor can then offer evidence of peacefulness to rebut that the victim was the first aggressor
b.      Applicable only when self-defense is raised – limited to criminal cases
c.       Limited to reputation/opinion not specific acts
                                                       iii.            Character of a Witness (Ex. for impeachment of credibility):
1.       FRE 404(a)(3): Evidence of witness character admissible under FRE 607-609
                                                      iv.            Character as the Ultimate Issue:
1.       FRE 405(b): when character is an essential element of a charge or defense, proof can be given via reputation/opinion testimony or specific instances of conduct
2.       Can use character trait if that is the ultimate issue in the case and not evidence of something else, can put in specific instances or reputation/opinion testimony
3.       Example:  Character trait of being unfit parent – If the state is trying to take away parental rights of D, they must prove they are an unfit parent and thus it is the ultimate issue
4.       Example:  Libel cases where damage to reputation is at issue