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

I.       Relevance and Its Counterweights
A.    Relevance Generally
1.      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.       Federal Rules: need not be disputed fact.
b.      Cal. Evid. Code § 210: must be disputed fact to be relevant.
c.       Of Consequence: must be something that is “provable” in the case.
2.      FRE 402: All relevant evidence is generally admissible. Evidence that is not relevant is not admissible. 
B.     Probative Value Versus Prejudicial Effect: Evidence whose probative value is outweighed by prejudicial effect may be properly excluded.
1.      FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
2.      Cal. Evid. Code § 352: Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
a.       “Unfair Prejudice”: Capacity of relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged, or an undue tendency to suggest a decision on an improper basis.
3.      Alternatives: In assessing the prejudice of evidence a Judge Must Consider using less prejudicial alternatives (stipulation to an element, versus introduction of full record to prove)
1)      Is the alternative of same probative value?
a)      If not, is the prejudicial effect of the first option worth its greater probative value?
(1)   Examples: stipulation, limiting jury instruction, less-gory or less-emotionally charged photos or video, objective financial or other records.
4.      Credibility: Judge May Not Take Credibility into Account when making a Rule 403 determination
C.     Character Evidence: Character Evidence is not admissible to prove conduct in conformance therewith, unless claim is based on sexual assault or child molestation.
1.      Sexual Assault and Child Molestation:
a.       Prosecution may offer that D committed other acts of sexual assault or child molestation
2.      Rape Shield Laws:
a.       Criminal:
1)      Reputation/Opinion Indadmissible
2)      Specific Instances of victims conduct admissible only
a)      to prove alternate source of semen or injury
b)      prior acts of consensual intercourse
b.      Civil:
a)      Opinion/Reputation: Plaintiff puts reputation in issue AND probative value outweighs prejudice.
b)      Specific Instances probative value substantially outweighs unfair prejudice
3.      FRE 404(a): Character Evidence Not Allowable Evidence of a person’s character or trait of character is generally not admissible for the purpose of proving action in conformity therewith on a particular occasion. 
a.       FRE 404(a)(1): Criminal Defendant May Bolster His Character:(Criminal Only):
1)      Defendant: May offer evidence (opinion or reputation only) of a pertinent trait of his character. 
2)      Prosecutor: May rebut
b.      FRE 404(a)(2): Criminal Defendant may Attack Character of Victim (Criminal Only): 
1)      Defendant: May offer evidence (opinion or reputation only) of pertinent trait of alleged victim’s character.
2)      Prosecutor: May offer evidence in rebuttal
3)      Prosecutor: May offer evidence of same trait in defendant UNLESS the evidence was offered as IMPEACHMENT evidence.
c.       Prosecution may First Offer Character Evidence of Prior Sexual Assault and Child Molestation
d.      First Aggressor Rule: If D accuses victim of being first aggressor, Prosecutor can offer character evidence of peacefulness of the victim.
1)      FRE 405(a) Proving Character by Reputation or Opinion: Where character evidence is introduced, Proof of character must be made by testimony in the form of opinion or reputation. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
a)      Michelson v. U.S.: On x-exam, a party may inquire whether a witness who testified to D’s reputation was aware of prior arrests or other specific incidences showing witness has a low standard of “good character” or is otherwise unreliable. Questions with unknowable answers not allowed (e.g., secret grand jury testimony or entirely fabricated incidences).
2)      FRE 405(b): Specific Instances of Conduct :  In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.
a)      Ex: Essential Element: truthfulness in defamation case, fitness as a parent in custody dispute).
e.       FRE 404(a)(3) Character of Witness

o: To prove identity, the prior may be admitted if they share distinctive identifying characteristics so unusual or distinctive as to be like a signature.
a)      Ex: prior acts of selling drugs encased in a balloon in an area heavily frequented by drug dealers were not sufficiently unique from the common practice to identify D under a modus operandi theory. 
c.       Intent: Evidence of prior acts or crimes may be used to prove intent of an accused
1)      U.S. v. Beasley: Evidence that D and his accomplices went “shopping for doctors” to write them large prescriptions of narcotics in 1982-84 substantially implies an intent to distribute in 1980. Evidence of the previous crimes was too prejudicial.
d.      Motive: Evidence of prior acts or crimes may be used to prove the motive of an accused
1)      U.S. v. Cunningham: Evidence of D’s addiction to Demerol was admissible to show her motive to steal Demerol in her workplace. Addiction is similar to other classes of people whose propensities may indicate motive, including child molesters or pyromaniacs.
2)      Wife Beating: Prior evidence of wife beating in a trial for the murder of the wife by the husband is admissible because it shows motive to dominate and control.
e.       Knowledge: Evidence of prior acts or crimes may be used to prove knowledge of the accused.
1)      Commission of Subsequent Crimes: Where a defendant commits a subsequent crime in order to cover up a previous crime, the subsequent crime can be used as evidence of the knowledge of guilt of the first crime. (Identifies him, also in trying the second crime the first crime could be used to show motive)
5.      Sufficiency of Evidence for Other Bad Acts (Relevancy Question): (SPLIT) The proponent of a prior bad act must establish first that there is sufficient evidence of the prior bad act before it is admissible.
a.       Huddleston v. U.S./FRE 104(b): The act is admissible so long as the jury can reasonably conclude (sufficient evidence available) that the act occurred and that D was the actor.