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University of California, Hastings School of Law
Faigman, Lisa Snyder

Evidence Faigman Fall 2016
FRE Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
FRE Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
RULE: Irrelevant evidence is not admissible.
Questions to be asked when you’re determining relevance:
1. What is the evidence being used to (help) prove?
Toward what proposition is it directed?
2. Is that proposition provable in the case? 
Look to:substantive law underlying the case and the rules of pleading to determine whether the evidence is offered on some point at issue in the case
3. Does the evidence help in proving that proposition?
If the evidence has any tendency in logic to make a fact of consequence in the case more or less probable than it would be without the evidence, then it is relevant within the meaning of Rule 401
McCormick: A brick is not a wall:
A party offers his evidence not in mass, but item by item each item in relation to a fact that it’s trying to prove.
If the evidenced leads to inferences of the facts being proved, items relevant
Test of relevancy applied by a trial judge in determining whether a particular item of evidence is to be admitted is LESS STRINGENT than the standard used a later stage when all the evidence of the party on an issue is sufficient to permit the issue to go to the jury.
RULE: Evidence is admissible if it tends to prove or disprove any consequential proposition, unless there is a legal or policy reason to exclude it. Knapp v. State (1907)
Facts: Knapp (defendant) was on trial for murder. In trying to prove that he killed the victim in self-defense, Knapp testified that he had heard a story that the victim, who was a police officer, clubbed and seriously injured an elderly man while in the process of arresting him. [Hearsay but admitted to show effect on the hearer?]. In response, the prosecution submitted evidence that the elderly man had actually died of senility and alcoholism and had no violent marks on his body when he died. The trial court admitted this about the cause of death evidence and convicted Knapp of murder. Knapp appealed.
The fact that the story Knapp claims he heard about the victim is not true tends to disprove Knapp’s claim that he actually heard the story, which in turn tends to disprove his claim of self-defense.
The falsity of the story shows that either the person who allegedly told Knapp this story, or Knapp himself, is not telling the truth. Although the falsity of the story does not completely invalidate Knapp’s testimony, it tends to disprove it, and is thus admissible. The trial court is affirmed.
403 Analysis: Probative Value Versus Prejudicial Effect
FRE Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Faigman: Weighing probative value and prejudicial effect adds the 4th question to 3 basic questions about relevancy discussed above.
4. How much does the evidence help and what are its costs? Is it sufficiently probative to justify its cost in terms of time and money? Does it carry dangers of prejudice or other risks that substantially outweigh its probative value?
RULE: Evidence is not admissible if its unfairly prejudicial effect outweighs its probative value. Old Chief v. United States (1997)
Facts: Old Chief (defendant) was charged with violation of a federal statute making it illegal for a convicted felon to carry a firearm. Old Chief had previously been convicted of assault causing serious bodily injury, a felony. He sought to stipulate to the evidence of his prior conviction and have the court so instruct the jury. In doing so, he sought to prevent the prosecution from proffering any other evidence about his prior conviction on account of its unnecessary prejudicial effect against him in the eyes of the jury. The district court denied Old Chief’s offer to stipulate and admitted the full record of his prior conviction. The United States Court of Appeals for the Ninth Circuit affirmed. The United States Supreme Court granted certiorari.
Although the prosecution is generally able to prove its case the way it sees fit, this is not the case where proffered evidence has the tendency to taint the juror’s minds so that they reach a verdict on an improper basis.
In this case, admission of the full record was error by the trial court because the full record had very limited probative value, if any, once Old Chief stipulated to the fact that he was a convicted felon.
On the other hand, admission of the full record of an assault conviction could paint Old Chief as a violent man and a lifelong felon in the eyes of the jury, neither of which would be a proper basis upon which to render a decision.
As a result, the unfair prejudice of the full record of Old Chief’s prior conviction outweighs its very limited probative value and thus is not admissible. The United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Two Methods for balancing probative v. prejudicial: Per Old Chief
(1) View evidence item “as an island” – its probative value vs. its potential for unfair prejudice, etc.
(2) Take into account “full evidentiary context of the case” – allows for discounting probative value if there are available evidentiary substitutes for the evidence. Use this one per LF!!!
“What counts as the Rule 403 “probative value” of an item of evidence may be calculated by comparing evidentiary alternatives.” (Old Chief). There are some steps to this method.
(1) On objection, the trial judge should decide whether a particular item of evidence raises a danger of unfair prejudice
(2) If so, the judge should evaluate the degrees of probative value and unfair prejudice not only for the item in question but also for any actually available substitutes
(3) Taking into account the need for narrative richness, etc., the judge should then decide w

rian, was struck and killed by Daniel’s car. Daniel’s answer admits liability for negligence. Paulette offers evidence that Daniel was driving while intoxicated, and that Harry was thrown 80 feet by the force of the impact. Daniel objects to this evidence as irrelevant. Is Daniel’s objection proper?Should it be sustained and the evidence excluded?
Under CEC 210, no relevant because D admitted liability.
Under FRE 401 relevant, but could be excluded under 403 because prejudice since such details of flying body could unjustly cause prejudice and make jury react to it and award more money.
Paul sues Dorothy for damages for personal injuries to himself and for the wrongful death of Paul’s wife arising out of Dorothy’s rear-ending of Paul’s car. Paul was in his car parked at a curb and his wife was at the car door, starting to get in. Paul also seeks damages for emotional trauma resulting from his presence at the scene of the accident. Paul testifies that he did not see his wife after the impact because he was rendered unconscious. Dorothy admits liability. Paul proffers photographs of his wife’s body at the accident site to show the condition of her body as a result of the collision, the autopsy report, and testimony of the autopsy surgeon and a friend regarding the reconstruction of the wife’s body required to permit an open coffin funeral. Dorothy makes an irrelevancy objection to Paul’s proffered evidence. What result?
Under CEC 210 not admissible for wrongful death because D admitted liability. Not admissible for emotional trauma because no cause of action (needs to have sensory perception but he didn’t see it). Irrelevant for his personal injuries.
Under 401 could be relevant for wrongful death but could also be excluded under 403. The rest same as under CA law.
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
“If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”
Evidence: “My dispatcher called saying ‘woman being beaten’ at 3131 Paradise Dr.”
Permitted use: To place officer at the scene.
Forbidden use:To prove victim was beaten
Alternatives: Have officer just say I was called to the scene without “woman being beaten” part.
Video of deathbed scene showing family grieving, offered in wrongful death action
Permitted use: to see how family is deeply connected.
Forbidden use: for appealing to the emotions of the jury.
Alternatives: have family members testify about emotional connection with the deceased.