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

Park, FA06
Submitted: SP07

EVIDENCE – Professor Park
Fall 2006

Definitions & Phrases:
1) Definitions
a) Redaction: Where evidence is admitted but edited so as not to have the same probative force
b) In Limine: Of, relating to, or being a motion, petition, or order regarding the admissibility of evidence whose exclusion is sought, esp. on ground that it is prejudicial – refers to a hearing before the trial
c) In Camera: In private, in the judges chambers (hearing that is not public, sometimes w/o lawyers)
2) Phrases:
a) “You can’t unring the bell”
b) “A brick is not a wall”
3) Miscellaneous:
a) 403 balancing should be done for everything except prior crimes that are untruthful
4) Limiting Instructions
a) Rule 105: When evidence is admissible for one purpose but not for another, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
i) Must make motion to court if you want a limiting instruction
5) Lack of Personal Knowledge
a) Rule 602: Witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. [Subject to 703, relating to opinion testimony by expert witnesses.]

Relevancy and Its Counterweights

1) Relevancy And Its Limits
a) FRE 401: Definition of “Relevant Evidence”
i) Any evidence that tends to make the existence of a fact more or less probable
(1) 4 questions when determining relevancy:
(a) What is the evidence?
(b) What’s it offered to prove?
(c) Does the fact help prove it?
(i) Doesn’t have to conclusively establish the fact – a brick is not a wall
1. Each item is not judged by whether it proves the case
(d) Is it provable?
(2) Legislative History: The fact to which the evidence is directed doesn’t have to be in dispute under this rule. [If the point has already been conceded, the evidence should be excluded b/c of waste of time or undue prejudice (FRE 403), rather than a general requirement that evidence is only admissible if directed to matter in dispute.] ii) Next Step: Once its determined relevant under these questions, still must ask if it causes harm under 403 – weigh probative value against prejudicial effect
b) California §210: Relevant Evidence
i) Evidence, including evidence relevant to the credibility of a witness or hearsay declarant, that may tend to prove or disprove any disputed fact that if of consequence to the determination of the action
(1) CA: Any disputed fact. FRE: Fact doesn’t need to be in dispute
2) Relevant Evidence is Generally Admissible
a) FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
i) All relevant evidence is admissible, except as otherwise provided by the Constitution or other law. Evidence which is not relevant is not admissible.
(1) Even if admissible, must still do balancing
ii) Evidence which aids a pertinent hypothesis is relevant
(1) Knapp v. State (Criminal)
(a) F: D killed V who claimed self-defense based on the fact that he was afraid of V, because he heard V had beaten an old man to death. At trial, ct let P submit evidence that the old man had died of natural causes.
(b) H: Relevant to show whether D heard the story, because if the act did not actually happen, then it is less probable that D actually heard the story and had reasonable fear.
(2) Sherrod v. Berry (Civil)
(a) F: P is a robbery suspect who had been killed by police (D). P was pulled over by D on suspicion of robbery. D stopped P (and another) and ordered them out of the car at gunpoint. When D got out of the car, they at first refused to follow commands. D’s thought they saw P reach into his coat and shot P.
(b) H: The fact that P was unarmed should not have been admitted into evidence. The issue of whether D had acted reasonably under the circumstances is affected only by what D reasonably believed at the time he fired his revolver.
(c) Note: Here, unlike in Knapp, the case concentrates on the reasonable belief of an individual officer.
3) Relevant Evidence May be Excluded for Undue Prejudice, Confusion, or Waste of Time
a) FRE 403: Relevant evidence may be excluded if the probative value is substantially outweighed by danger of: [letters added] i) Unfair prejudice,
ii) Confusion of the issues, or
iii) Misleading the jury,
iv) Undue delay
v) Waste of time, or
vi) Needless cumulative evidence
(1) Legislative History:
(a) Must balance the probative value of and need for the evidence against the harm that would result from its admission
(b) Unfair p

vidence of a person’s character is generally not admissible to show conformity therewith on a particular occasion. You can’t use evidence to prove character to show action. (i.e. showing bad character to show they would tend to commit a crime)
i) Rationale:
(1) Inferential Error
(a) Attributing too much importance to character (Once a thief, always a thief)
(2) Nullification Prejudice
(a) Jury may nullify the requirement of reasonable doubt that D is guilty or nullify the requirement that he must be guilty of this particular offense
(b) Jury may punish b/c of type of person and not particular act
(3) Waste of Time, Confusion, Surprise à 403 Factors
(a) Would take a lot of time, delay, money, etc.
(b) May confuse the jury
(c) Surprise: D not ready to defend himself on everything he’s ever done
b) 3 Exceptions [When Character Evidence is Allowed] i) FRE 404(a)(1): When evidence is offered by ∆ in a criminal case, or when the prosecution is rebutting the character evidence put in issue by ∆
(1) Mercy Rule: Refers to fact that ∆ can opt to show good character
(a) Criticized b/c more powerful ∆’s more likely to have influential character witnesses
(b) P’s Rebuttal:
(i) P can put another witness who testifies that ∆ does not have those characteristics
(ii) P can cross-examine ∆’s character witness. Can ask about specific instances of conduct to show that witness is not familiar with ∆’s reputation.
1. FRE 405(a): On cross-examination, inquiry is allowable into relevant specific instances of conduct
a. Michelson: In criminal trial (for bribing a federal agent), after D’s witnesses testified that D had a reputation as an honest man, prosecutor was not allowed to ask the witnesses if they had heard of D’s arrest for stolen goods more than 20 years prior but could do so today
i. Prosecution must have good-faith basis (i.e. an arrest record, etc)