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

I.         Relevance
A. Rule 401 – Definition of “Relevant Evidence”
1.FRE 401: “Relevant evidence” means evidence having any tendency to make any consequential fact more or less probable than it would be without the evidence.
a.     Basically, if evidence makes the fact more probable than w/o evidence
b.    This is a very LIBERAL standard
i.   Doesn’t have to be conclusive or strong; just has to move the needle a little bit.
c.     Substantive law determines relevance – the situation/issues will determine relevancy
d.    Issue can be relevant even if not a disputed fact. 
i.   The prosecution has a right to prove its case in its own way.
ii.Juries don’t like gaps in narrative
2.Three Questions to Ask:
a.     What is the evidence being offered to prove?
b.    Does it help prove that proposition?
i.   Doesn’t need to prove the case, only needs to help build the case. à A BRICK IS NOT A WALL
c.     Is that proposition provable in the case?
i.   Not provable if:
(1) It is not an element in the claim
(2) Substantive law doesn’t allow
(3) It was eliminated in pre-trial (ie. summary judgment)
ii.Ev that wasn’t raised in initial trial is irrelevant b/c not provable.
3.CA DIFF. – CEC 210: Relevant evidence has a tendency to prove/disprove a disputed fact
a.     If parties agree, or if fact is conceded, it is NOT disputed
B. Rule 402 – Relevant = Admissible; Irrelevant = Inadmissible
1.FRE 402: ALL relevant evidence is admissible (unless another rule excludes). Not admissible if irrelevant.
a.     Could be excluded by FRE, Constitution (ie. 6th Am), statute
C. Rule 403 – Balancing Test for Excluding Relevant Evidence
1.FRE 403: Relevant evidence MAY be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative ev.
a.     Prejudice = jury might use evidence for improper purpose
i.   Old Chief (felon w/ firearm) – P charged as felon w/ a firearm. Ct determines that D’s stipulation that he is a felon fulfills the felon element of the crime and admitting the gory details would be too prejudicial. (Ordinarily the prosecution is allowed to prove its case the way it wants to; cannot force party to accept a stipulation).
b.    Note: Unfair surprise is NOT a reason for exclusion under FRE (it is in some states)
2.Judge makes 403 determination outside of the jury
a.     But CANNOT exclude evidence based on credibility à Judge CANNOT make credibility determinations
b.    403 test weighs evidence assuming it will be believed
c.     Judge has broad discretion in admitting/excluding evidence under 403
3.TEST – When weighing probative v. prejudicial, look at:
a.     What proper purpose does it accomplish? (How is it relevant?)
b.    What are the forbidden uses? (How might jury misuse the info?)
c.     What other alternatives exist? (Can other evidence be offered for the proper purpose?)
4.403 is the universal fallback
5.CA DIFF – CEC 352: Evidence MAY be excluded if its probative value is substantially outweighed by substantial danger of undue prejudice, confusion of the issues, misleading the jury, or undue consumption of time.
II.     Preliminary Facts
A. Rule 104(a)
1.FRE 104(a): Preliminary Qs of qualification of witness, existence of privilege or admissibility of evidence shall be determined by court. Judge not bound by FRE (except w/privilege).
a.     Rationale: Jury might not ignore inadmissible evidence if they’ve already heard it
b.    Standard: Admissible if proven by preponderance of the evidence.
c.     Defense generally prefers this standard b/c they prefer a judge to decide – a jury might not ever see it.
2.When falsity of the preliminary fact means that the ev is excluded for some other reason than relevance, it’s a 104(a) issue.
a.     Ie. Miranda warning, search and seizure
a.     Evidence sufficient to sustain a finding of the existence of the preliminary fact . . .
B. Rule 104(b) – Conditional Relevancy
1.FRE 104(b): If relevancy is conditional on Q of fact, court shall admit it subject to introduction of evidence sufficient to support a finding of fulfillment of the condition. (JURY decides).
a.     Standard: Admissible if reasonable jury could conclude (see Huddleston)
b.    Ie. Δ says it was not his car speeding, did Δ write the ransom note, etc.
2.When falsity of the preliminary fact means that the ev is irrelevant, it’s a 104(b) issue.
III. Character Evidence
Is Character Evidence offered to show action in conformity with the character?
– If offered to show KIPPOMIA
– If character/reputation is in issue (ie. element or defense of crime)
Is the evidence offered:
– By Δ to show his good character (or pros to rebut)?
– By Δto show victim’s character (or pros to rebut)?
– To reflect on the credibility of a witness?
– To show commission of sex crimes?
A. Rule 404 (a) – Character Evidence to Prove Conformity
1.FRE 404(a): Evidence of person’s character is NOT admissible for proving conformity on this occasion.
a.     Character = general human trait / general propensity (ie. honest, violent, careful, etc.)
i.   Habit =/= character
b.    Can’t show that Δ is a bad person or has a propensity to commit the crime
i.   Ie. Reputation of being a thief, that Δ is a drug addict
c.     Can’t use character to prove likelihood of conduct
d.    All types of character evidence (opinion, reputation, prior bad acts) are excluded when used for conformity
a.     Jury might assume “once a thief, always a thief” (over-persuasive)
b.    Jury might ignore the law once it hears of bad character
c.     Waste of time, confusion, surprise
3.404(a) EXCEPTIONS:
a.     Character of the Accused
i.   Mercy Rule – Δ can offer evidence of own good character  (does not need to take stand himself)
(1) Pros gets to cross-examin

pecific acts can be asked about in cross-exam – Ie. “Do you know that Δ…?” (Michelson)
2.When specific acts are ok:
a.     On cross
b.    When character is an element of the case/claim/defense
a.     Pros must accept W’s answer
b.    Must have good faith basis for asking question
c.     Trial judge can still exercise discretion to exclude
E. Rule 406 – Habit
1.FRE 406: Ev of a person’s habit/routine practice CAN be used to prove conformity on this occasion
a.     Applies to habit for individual or routine practice of business
b.    Habit = regular/routine response to a repeated situation 
i.   Must be semi-automatic response – A very NARROW tendency to react, uniform response each time.
(1) Need to show sufficient number of instances.
(1) Always skips a step when going downstairs
(2) Never slows down at particular yield sign
(3) Always gives sales receipt upon checkout
iii. NOT:
(1) X is a careless driver.
(2) X is always in a hurry.
(3) X takes good care of her things.
IV. Rape Shield / Sexual Abuse
A. Rule 412– Rape Shield (Character Evidence of Sexual Victim)
1.FRE 412: Evidence of victim’s past sexual behavior or sexual disposition is INADMISSIBLE
a.     This includes reputation, opinion, and specific acts (unless listed in the exceptions)
b.    Rationale:
i.   Protect victim from humiliation
ii.Protect against prejudice against sexually active women
iii. Encourage victims to report crimes
c.     Procedure: Ev is heard in chambers to determine admissibility (pre-screened and approved).
d.    Applies in both CRIM AND CIVIL cases.
e.     KIPPOMIA never applies
f.     Note: Blackmail after rape would not be sexual behavior
i.   Cassidy: V’s similarity of sexual activity w/ another man inadmissible b/c not the same man and not offered to explain physical injuries.
(1) But if D wants to show history of making false accusations to prove blackmail, could enter ev that V accused first man of rape to show fraudulent behavior.
a.     Criminal Case
i.   Explain pregnancy, injuries, and disease.
ii.Evidence of prior sexual acts WITH Δ to prove consent
iii. If it violates constitutional rights (6th Am’s confrontation, 14th Am’s DP right to cross)
b.    Civil Case
i.   If probative value substantially outweighs prejudice
ii.If victim opens door about own reputation
c.     NOTE: Sometimes Constitutional right to confront witness overrides Rape Shield Rule.