EVIDENCE RELEVANCE

FEDERAL CALIFORNIA
PROP 8 Judge still has
Relevant evidence shall not be excluded in any EXCEPTIONS discretion to exclude
CRIMINAL proceeding based on prejudice

SUBSEQUENT SUPERMAJORITY LEGISLATION

Privileges
• Character evidence;
• Secondary evidence;
• polygraphs Hearsay

FRE § 401 CEC § 210

TWO ELEMENTS OF RELEVANCE TWO ELEMENTS OF RELEVANCE

1. MATERIAL 2. PROBATIVE
AND Evidence shows fact is more or less probable
Evidence tending to show any fact of consequence
(determined under assumption that evidence believed by jury)

FACT MUST ONLY BE “OF CONSEQUENCE” - NOT FACT MUST BE EXPRESSLY INCLUDES CREDIBILITY
REQUIRED TO BE IN DISPUTE “IN DISPUTE” AS RELEVANT

FRE § 403 CEC § 352

BALANCE OF INTERESTS BALANCE OF INTERESTS

3. PROBATIVE VALUE MUST SUBSTANTIALLY OUTWEIGH:

NEEDLESS PRESENTATION OF
OR UNDUE CONSUMPTION OF TIME OR PREJUDICE
CUMULATIVE EVIDENCE

PRELIMINARY QUESTIONS
FRE § 104(a) CEC § 405
Determined by judge, not bound by rules of evidence
(except privileges) Determined by judge, not bound by rules of evidence (except privileges)

MEDIUM STANDARD:
BOOTSTRAPPING ALLOWED PREPONDERANCE OF THE BOOTSTRAPPING NOT ALLOWED
EVIDENCE (51%)

EVIDENCE THAT IS CONDITIONAL ON ADDITIONAL FACT

FRE § 104(b) CEC § 403
• Heard by a jury after judge determines evidence is • Heard by a jury after judge determines evidence is “sufficient to support a finding”
“sufficient to support a finding” • Bootstrapping not allowed
• Bootstrapping not allowed
CONDITION PRIOR TO HEARING SUBJECT TO A MOTION TO
CONDITION PRIOR TO HEARING SUBJECT LOW STANDARD: STRIKE
TO A MOTION TO STRIKE “SUFFICIENT TO • Judge has discretion to admit evidence, except for personal
• Judge has discretion to admit evidence SUPPORT A FINDING” knowledge or expert testimony
© 2020, Russell Jokela. All rights reserved.