Evidence Final - Relevance

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FRE rule of evidence for relevance

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FRE 401:
material: having any tendency to make the existence of any fact that is of consequence to the determination of the action

(2) probative: evidence that makes the fact more or less probably than it would have been without the evidence

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CEC rule for relevance

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CEC 210

material, probative

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differences between FRE and CEC relevance rules (2)

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(1) FRE 401 does not require a fact to be in dispute

(2) CEC 201 specifically includes witness or hearsay declarant credibility evidence; FRE 608 and 806 do this

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preliminary questions under FRE

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FRE 104: FOR JUDGE (a) Questions of admissibility generally. Preliminary questions concerning the
1. qualification of a person to be a witness,
2. the existence of a privilege, or
3. the admissibility of evidence shall be determined by the court, subject to the provisions of (b).

BOOTSTRAPPING: In making its determination it is not bound by the rules of evidence except those with respect to privileges.

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preliminary questions under CEC

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CEC 405: (a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises.

NO BOOTSTRAPPING The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.

(b) If a preliminary fact is also a fact in issue in the action:
(1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact.
(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact.

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differences between preliminary questions for the judge between FRE and CEC

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in FRE, judge can consider inadmissible hearsay in making the preliminary ruling and even rely upon the proffered evidence itself. CEC does not allow this.

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conditional relevance in FRE

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FRE 104(b) JURY (b) Relevancy conditioned upon fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

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conditional relevance in CEC

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(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:
(1)The relevance of the proffered evidence depends on the existence of the preliminary fact;
(2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony; (FRE 602)
(3) The preliminary fact is the authenticity of a writing; or (FRE 901(a))
(4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. (FRE 104(b))
(b) Subject to Section 702, the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial.
(c) If the court admits the proffered evidence under this section, the court:
(1) May, and on the request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury find that the preliminary fact does exist.
(2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists.

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differences between FRE and CEC with conditional relevance (2)

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1. preliminary facts decided by judge in FRE are conditional relevance and jury would decide them in CEC

2. in CEC, judge has the discretion to let in evidence and have the preliminary fact proved later. sometimes though, he doesn't have discretion. in FRE, judge ALWAYS has that discretion

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Three preliminary facts judge decides in FRE but are considered conditional relevance and for the jury in CEC

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Preliminary Questions concerning:

1. party authorized another to make a particular statement
2. a particular statement was within the scope of an agent of servant's employment
3. a particular statement was in furtherance of a conspiracy

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procedure for determining preliminary facts in CEC

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CEC 402

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.
(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.

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CEC 400

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CEC 400, Preliminary Fact
As used here, a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence includes:
1. qualification of a witness
2. existence of a privilege

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CEC 401

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CEC 401:
as used here, "proffered evidence" means evidence admissibility or inadmissibility of which is dependent upon existence or nonexistence of a preliminary fact

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CEC 404

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CEC 404

Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.

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discretionary balance in FRE

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403: evidence may be excluded if its probative value is substantially outweighed by
(1) unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) causing undue delay, waste of time, or needless presentation of the issues

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discretionary balance in CEC

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CEC 352:

evidence can be excluded if its probative value is substantially outweighed by the probablity that is admission will:

1. necessitate undue consumption of time, or
2. create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury

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differences between FRE and CEC discretionary balance

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two substantials in CEC