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

Evidence Outline

Professor Roger Park

UC Hastings, Spring 2011


A. History- Congress enacted modern FRE in 1975 and SC has authority to amend

a. Originally SC appointed advisory committee to promulgate rules of evidence, and congress passed a statute preventing the rules from going into effect due to their controversial nature

b. 3 reasons why it was controversial- expansive rule of executive privilege, no doctor-patient privilege, contained a broad liberalization against the rule of hearsay

c. Congress bolstered hearsay rule to make it more exclusionary.

B. Majority of states have adopted FRE:

a. Exceptions- several states such as NY, IL, CA have not adopted the FRE- CA has own rules, NY does not have own rules but use common law



A. FRE 401: Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence

1) Evidence is relevant if it increases probability at all but it does NOT have to be Conclusive or Strong to be relevant- “a brick is not a wall” but it can help build a wall”

2) Must be pertinent to what lawyer is trying to prove/ must be material to what is being proved in the case (Doesn’t have to be in dispute)

3) Love Letter example (pg 77): letter is admissible b/c it’s relevant even though it’s not conclusive. The fact that he wrote the letter doesn’t mean he’ll murder his spouse but it is relevant b/c it makes it more probable that he might murder his spouse.

4) Questions to determine relevancy:

i. What is it offered to prove? Does it help establish a fact, or make it more or less probable? Is it of consequence to the case?

ii. Ex: when punitive damages are sought, it might be important to consider the wealth of the D – the fact is not of consequence in the action, but may be relevant in other means.

B. FRE 402: relevant evidence is generally admissible unless another rule prohibits it / evidence that is not relevant is not admissible

C. CEC 210: Relevant evidence = evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any Disputed fact that is of consequence to the determination of the action.

Under FRE – can be disputed or undisputed

1) Under CA rule- relevancy test hinges on whether the fact is in dispute

2) Under FRE- evidence must be of consequence, it does not have to be disputed

3) Ex: The bank floor plan in a bank robbery is not admissible under CEC – b/c it is not disputed, but under FRE it could be of consequence to explain the robbery.

4) Ex: (car accident) – D wants to admit negligence. Under CEC, liability is not disputed, so exclude evidence of negligence & only assess damages. Under FRE, the negligence might be of consequence to help prove the accident was more probable than not.

D. Knapp v State (relevant evidence makes any fact of consequence more or less probable)

1) Knapp (D) claims he murdered sheriff in self defense because he heard the victim beat an old man to death so he had reason to fear for his safety. state attempted to introduce evidence that the old man died of senility

2) RULE: evidence is relevant when it tends to prove or disprove an issue at trial

3) Analysis: The evidence that the beating did not happen is relevant to question whether the defendant actually heard what he claimed to hear. If there was not a beating, it decreases the chance that D heard a rumor about the beating.

E. Sherrod v Barry

1) Police officer shot suspect when he thought the victim made a sudden movement towards his gun. Evidence that he was actually unarmed was excluded.

2) Analysis: it is relevant that the victim was unarmed because it diminishes the probability that he was making a quick movement for a weapon.


A. FRE 403: relevant evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice, creates confusion or it is a waste of time

1) The word substantially is significant, because it makes 403 balancing in favor of admissibility- if probative and prejudicial evidence is balanced, it is admissible.

2) Balancing Test- Questions to determine if the evidence should be excluded:

i. What is the probative value for proper purpose of the evidence?

ii. Is there a danger evidence will be used for a forbidden purpose?

iii. Is there an alternative way the party can include the information and accomplish the same purpose?

iv. Does it carry prejudice that outweighs probative value?

B. CEC 352: exclude evidence if the probative value is substantially outweighed by consumption of time, danger of prejudice, confusing issues, misleading the jury

C. Old Chief v United States (syllogism is not a story)

1) Old Chief requested the government refrain from introducing information about his prior felony, except to state he had been convicted of a prior felony. The prosecutor refused the stipulation and insisted on his right to prove the case in his own way.

2) RULE: when status is element of a crime, it is prejudicial to present evidence about the status if D agrees to stipulate.

3) The nature of D’s prior crime was too prejudicial & could cause the jury to convict the D for his prior offense due to “bad character”. Here the risk of unfair prejudice outweighed the probative value of the record of conviction. Prosecution is usually allowed to use evidence to convey the moral gravity of a crime, but here the P didn’t lose the “colorful narrative”/ disappoint jury expectations/interrupt the narrative by excluding the prejudicial evidence of the prior crime.

D. Normally do not stipulate around facts, and the prosecution has the right to tell its case the way it wants- you don’t want to deprive the court/ jury of evidence that is fair and has legitimate weight. Also facts might be more relevant to witness credibility etc.

1) Disappointing Expectations- if jury expects evidence and don’t get it, then they would hold that against the prosecution

2) Parr case (cited in Old Chief) – [shows that Prosecution gets to present their case the way they want to]

i. Prosecutor wanted to show a pornographic movie. D offered to stipulate that the movie was pornographic.

ii. If trying to prove possession, the movie could show a person, paraphernalia or address linking it to the D, OR could be prejudicial because the jury might be so offended that they name D guilty by association. Here, the movie is part of the story relevant to the case, in contrast to Old Chief where the prior crime is not part of the current story, and rather reflects on his character. So the jury might hold it against the prosecution if they do not show movie, and don’t want to disappoint the jury expectations by not showing them evidence they want to see

E. Weighing Credibility of Evidence

1) Ballou v. Henri Studios (judge has to accept evidence as credible to do 403 balancing test)

i. Ballou (P) tried to suppress evidence of the deceased’s blood alcohol test taken after his death, showing he was intoxicated, and presented evidence that a nurse stated he was not drunk. Judge excluded the evidence because he thought the blood test was unreliable.

ii. RULE: I


i. FRE 404(a)(3): evidence of witness character admissible under FRE 607-609

4) Character as the Ultimate Issue:

i. FRE 405(b): when character is an essential element of a charge or defense, proof can be given of specific instances of conduct

ii. Can use character trait if that is the ultimate issue in the case and not evidence of something else, can put in specific instances or reputation/opinion testimony

iii. Ex: Character trait of being unfit parent- If the state is trying to take away parental rights of D, they must prove they are an unfit parent and thus it is the ultimate issue

iv. Ex: libel cases where damage to reputation is at issue


1) Reputation or Opinion Testimony:

i. Foundational Requirement- offering party must lay foundation to show witness’s qualifications to testify about a person’s reputation, and it is the knowledge of the accused/victims reputation at the time of the charged offense that is relevant

ii. FRE 405(a) Reputation/Opinion testimony – character evidence must take form of reputation or opinion, NOT of Specific Acts (Ex: Teddy Roosevelt testimony)

a. On Cross Exam.- Inquiry into relevant specific instances of conduct IS Allowed.

iii. Michelson v. United States – (CAN use specific acts to challenge witness testimony on cross examination)

a. Michelson charged with bribery of an IRS agent. He called witnesses to testify about his good character for truth and honesty. Court allowed prosecution to ask the witnesses if they had heard about his 27 year old arrest for receiving stolen property.

b. RULE: P has a right to test basis for the character witnesses’ testimony. A character witness, if unaware of D’s prior arrests, may not have a good understanding of D’s reputation or may have poor reputation standards.

c. A D may introduce evidence of his good character from which jury can infer he is not likely to commit the offense, but once D opens the door & introduces reputation evidence, the prosecution can challenge the evidence through cross examination or calling its own character witnesses. Trial judge has the discretion to limit the evidence to guard against unfair prejudice. Prosecution can cross-examine to show the witness is not familiar with the D’s reputation.

d. Rationale: impeach witness if they are not qualified to comment.

2) Specific acts ARE Allowed – IF Character is an Essential Element of the Crime.

i. FRE 405(b) – when character is an essential element of a charge or defense, proof can be given with specific instances of conduct

ii. OR specific acts may be raised on cross examination


1) FRE 404(b): Evidence of a crime or other act MAY be admissible to show something Other than Character.

i. KIPPOMIA- Knowledge, Intent, Preparation, Plan, Opportunity, Motive, Identity (or modus operandi), Absence of mistake (lack of accident). (NOT an Exhaustive list!)