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

UC Hastings, Evidence, Faigman, Fall 2017

FRE 402: Irrelevant evidence inadmissible

FRE 401: Test for Relevance

FRE 403: Probative value substantially outweighed

FRE 404: Impermissible Character evidence for purpose of showing propensity

SS CAPPOMIA Alternative Purposes to FRE 404

FRE 105: limiting instruction

FRE 701: Lay Witness Opinion Testimony

CEC § 800: same

FRE 702: Expert testimony

What would get a limiting instruction?


103(a)(2): preserving objection to the exclusion of evidence

State reason evidence is admissible
State substance of evidence: in record, but not given to jury

Witness examination testimony
Offer of proof (tell judge what witness would say)

103(b): for a tentative ruling (sometimes made in motions in liminae) you do have to renew your objection

A court can sua sponte exclude evidence, even if the lawyer does not object.

There is a trend towards appellate courts finding prejudicial error (harmful error) less often. Courts used to reverse if the error contributed to the jury’s verdict; now, courts look at the “overwhelming weight of the evidence” and whether but for the error, the result would have been different.

The benefiting party has the burden of proving harmless error by a preponderance of the evidence. For constitutional errors, the standard of proof is beyond a reasonable doubt.

Two prejudice concerns about character evidence:

party more likely to act in line w/ his character
punishing party for past bad acts

Reasons the prosecution is generally allowed to prove undisputed facts:

Evidence may have unforeseen relevance.
It is permissible for the evidence to have an effect on the emotions of the jury.
The jury may expect the evidence, and punish the party who fails to present it.

Probative value:

Piece of evidence is considered in the full evidentiary context of the case

Probative value relative to available substitute evidence: substitutes may diminish probative value of evidence at issue
Also consider the danger of unfair prejudice of the substitute pieces of evidence

If no available substitute for a critical piece of evidence, may increase the probative value of the unique evidence
Also consider likelihood evidence will be used for a forbidden purpose, and availability of substitutes or redactions that cannot be or are less likely to be used for an improper purpose

Character and Habit

FRE 404: Character Evidence; Crimes and Other Acts

Character Evidence

Propensity is a prohibited use
Exceptions for criminal case:

∆ may offer evidence of pertinent trait; if admitted prosecution may offer evidence to rebut it
subject to limitations in 412, ∆ may offer evidence of victim’s pertinent trait, if admitted prosecutor may offer evidence

to rebut it
or ∆’s same trait

homicide case: prosecutor may offer evidence of victim’s peacefulness to rebut evidence victim was 1st aggressor

Other Acts

Prohibited for propensity


Story Completion
Signature (modus operandi)

Make sure intent at issue


Each act integral part of plan
CA does broadly


Possession of unusual skills


Prior assaults on same victim
Civil discrimination

FRE 406: Habit

To show propensity

Automatic regular reaction
To specific stimuli

Rape Shield

FRE 412: Sex-Offense Cases; Victim’s Sexual Behavior


Civil or criminal proceeding

Other sexual acts
Sexual behavior



Prove ∆ not the right identity

Limited in time and purpose
Specific acts


Specific acts w/ ∆

Constitutional rights:

No 403
Constitutional balancing

Civil cases

Opposite of 403
Reputation if victim put it in issue

104(b) determination

Similar Happenings: sufficiently similar: 104(a) determination


Less strict

403 does not apply b/c built in w/ policy behind rules

but if non-prohibited purpose: 403 balancing

FRE 407: Subsequent Remedial Measures

Not admissible

Culpable conduct
Defect in product or design
Need for warning or instruction

May admit: 403

If disputed:

Feasibility of precautionary measures

Broad: any change would have been unsuccessful or potentially more unsafe
Narrow: measure was not physically, technologyically, or economically possible

Limiting instruction