證據法 · 第 1 章，共 1 章

Foundations: Relevance, Exclusion and the California Overlay

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The first three steps of every Evidence question: whether the evidence is relevant under FRE 401 or Cal. Evid. Code § 210, whether the judge may still exclude it under FRE 403 or § 352, and how Proposition 8 changes the analysis in a California criminal case. The chapter also covers preliminary facts, limited admissibility and the rule of completeness, and previews the six-step template used in every California Evidence essay.

學習目標

1.State the FRE and CEC relevance tests and explain the one-word difference between them.
2.Apply the FRE 403 and Cal. Evid. Code § 352 balancing tests to photographs, prior acts and cumulative evidence.
3.Decide whether the judge or the jury resolves a preliminary fact, and ask for a limiting instruction or completeness at the right moment.
4.Explain what Proposition 8 does in a California criminal case and list the rules that survive it.
5.Run the six-step California Evidence Code template on any item of evidence.

1.1 How Evidence is tested

Evidence is the law that decides what a jury may hear. Every question asks the same thing: may this witness say this, or may this document come in? The subject is tested on the Multistate Bar Examination (MBE) and in the essays. The two formats use different rulebooks, so first decide which one the question wants.

The Federal Rules of Evidence (FRE) govern the federal courts and are the only law tested on the MBE. The California Evidence Code (CEC) governs the California state courts. The two codes agree on most points; where they differ, the essay graders expect you to say so.

proponent – The party who offers an item of evidence and who must show that the evidence is admissible.

admissible – Evidence that the rules allow the jury to hear or see. Inadmissible evidence is kept out even if it is true and useful.

Evidence on the California Bar Exam

Where	What is tested	Applicable law
MBE (day 2)	What is tested175 scored questions, 25 per subject. Outline of the National Conference of Bar Examiners (NCBE): about one-third relevancy, one-quarter presentation of evidence, one-quarter hearsay, the rest privileges and writings.	Applicable lawFRE only
Essays (day 1)	What is testedFive one-hour essays. Evidence appeared on 29 of the last 50 exams (58 percent), most recently in July 2026 under the CEC.	Applicable lawGeneral law (FRE) unless the call names California; then the CEC
Performance Test (day 1)	What is testedOne 90-minute task. The February 2026 PT was a brief in support of a motion, reported as an Evidence issue.	Applicable lawThe Library in the packet
Scoring	What is testedWritten day and MBE count equally; 1,390 of 2,000 passes.	Applicable lawSame for every subject

注意

The applicable-law default

On the MBE, apply the FRE only (NCBE outline). On an essay, apply the FRE unless the call names California. Under a CEC call, answer under the CEC and add an FRE sentence only where the codes differ. Every essay booklet says: “Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application.”

The essay is usually a trial transcript or a list of items, and the call asks whether each one is admissible. Many calls say “according to the California Evidence Code”. In a criminal case with a CEC call, you must also discuss Proposition 8 (section 5).

The six-step attack order

構成要件

The Evidence attack order

Run every item of evidence through the same six questions, in this order:

1.Step 1: Relevance. Does the evidence tend to prove a fact that matters? FRE 401; CEC § 210 adds the word “disputed”.
2.Step 2: Proposition 8. In a California criminal case, evidence that passes step 1 comes in unless a surviving rule excludes it.
3.Step 3: The specific rule. Does a rule on character evidence, policy exclusions, opinion, authentication or writings bar this evidence?
4.Step 4: Hearsay. Is the evidence an out-of-court statement offered for its truth, and does an exception apply?
5.Step 5: Privilege. Does a holder have a right to keep the evidence out?
6.Step 6: Discretionary balance. Should the judge exclude it under FRE 403 or CEC § 352?

This chapter teaches steps 1, 2 and 6, and section 6 turns all six steps into an essay template. Chapters 2 to 11 teach steps 3 to 5, and chapter 12 compares the two codes in full.

應試提示

Answer under the FRE unless the call names California. Then answer under the CEC and add one FRE sentence only where the codes differ; every criminal case also gets a Proposition 8 paragraph. Tested on 29 of the last 50 exams.

注意

After July 2028

From July 2028 California moves to the NextGen Uniform Bar Examination (UBE), which tests Evidence under the FRE only. A California component is proposed but not approved. The CEC rules in this book serve the February 2027, July 2027 and February 2028 exams.

本章重點

1.The MBE tests Evidence under the FRE only: 25 scored questions, about one-third on relevancy.
2.Essays default to the FRE; a California call switches every issue to the CEC, plus Proposition 8 in criminal cases.
3.Evidence essays appeared on 29 of the last 50 exams; relevance is the most tested rule.
4.Use the six-step order on every item: relevance, Proposition 8, rule, hearsay, privilege, balance.

1.2 Relevance: FRE 401–402 and CEC § 210

Relevance is the first question for every item of evidence and the most tested rule in California Evidence essays: it appeared on 25 of the last 50 exams. The bar is low, which is exactly why graders reward a clean one-sentence statement of it for each item. Learn the federal definition first, then learn the one word that California adds.

規則

FRE 401: test for relevant evidence

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. The fact must also be of consequence in determining the action.

relevant evidence – Evidence with any tendency to make a fact that matters to the case more or less likely than it would be without the evidence.FRE 401; Cal. Evid. Code § 210

probative value – How strongly an item of evidence tends to prove the fact it is offered to prove.

構成要件

The two parts of relevance

Both parts must be present:

1.Probative: The evidence makes a fact more or less probable. Any tendency is enough; the evidence need not be conclusive.
2.Material: The fact is of consequence: the substantive law and the pleadings make it matter to the outcome.

須滿足全部要件。

The first part sets a very low bar. Evidence need not prove the fact by itself. As the advisory committee note quotes McCormick: “A brick is not a wall.” Each item of evidence only needs to add something to the proof. Evidence that a defendant owned a gun does not prove he fired it, but it makes that fact a little more probable, so it is relevant. Its probative value may be small; it is still relevant.

The second part depends on the substantive law and the pleadings. In a negligence case the elements are duty, breach, causation and damages, so any fact about them is of consequence. A fact outside the elements, such as the defendant’s wealth, is not of consequence unless a claim for punitive damages makes it a fact of consequence. Always ask: which element does this evidence help to prove?

成文法CA

Cal. Evid. Code § 210

Relevant evidence defined

“Relevant evidence” means 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.

查看原文

規則

Relevant evidence is admissible unless a rule excludes it

Under FRE 402, relevant evidence is admissible unless the Constitution, a federal statute, the Rules of Evidence or other Supreme Court rules provide otherwise. Irrelevant evidence is not admissible. The CEC splits the same rule in two: no evidence is admissible except relevant evidence, and all relevant evidence is admissible unless a statute provides otherwise.

Read the two codes side by side. Fed. R. Evid. 401 asks whether the fact is of consequence. Cal. Evid. Code § 210 asks whether the fact is a disputed fact of consequence. That single word is the most important California distinction in this chapter, and it changes the result whenever a fact has been admitted or stipulated. The definition in § 210 also says expressly that evidence about the credibility of a witness or hearsay declarant is relevant.

CA加州差異

The one-word difference: “disputed”

一般規則（聯邦 / 多數州）

FRE 401 asks only whether the fact is of consequence. A stipulated or uncontested fact is still of consequence, so evidence about it stays relevant. Any objection must come under FRE 403.

加州

Cal. Evid. Code § 210 requires a disputed fact of consequence. Once a fact is stipulated or not in dispute, evidence offered only to prove it is irrelevant and inadmissible under § 350, before any § 352 balancing.

If the call names the CEC, write “disputed fact of consequence” and check whether any fact has been stipulated. If the call is silent, apply FRE 401 and mention § 210 only when a stipulation changes the result.

A caution for criminal cases. A plea of not guilty puts every element of the crime in dispute. A defendant who simply does not contest an element has not removed it from dispute. The prosecution also need not accept a defense offer to stipulate in most cases. So the § 210 point is strongest when the parties have actually agreed to a fact, which happens most often in civil cases.

範例

The defendant’s wealth

In a car-crash negligence trial, the plaintiff offers evidence that the defendant is a wealthy business owner. The plaintiff seeks only compensatory damages.

分析

Wealth has no tendency to make careless driving more or less probable, and no element of negligence depends on it. The fact is not of consequence, so the evidence fails FRE 401 and § 210 alike. If the plaintiff had pleaded punitive damages, wealth would matter to the amount, and the analysis would change.

結果

Inadmissible as irrelevant under both codes.

範例

The stipulated cause of death

In a California civil wrongful-death action, the parties stipulate that the decedent died of the gunshot wound. The plaintiff offers autopsy photographs to prove the cause of death.

分析

Under FRE 401 the photographs would remain relevant, and the question would become the FRE 403 balance. Under § 210 the cause of death is no longer a disputed fact, so the photographs are irrelevant and inadmissible under § 350 of the CEC. The court never reaches the § 352 balance.

結果

Irrelevant under the CEC; the same photographs would be relevant, though possibly excluded, under the FRE.

重點

Relevance is a low bar: any tendency to prove a fact that matters. Under the CEC the fact must also be disputed.

應試提示

For every item of evidence, write one relevance sentence that names the fact it tends to prove and the element that fact belongs to. Relevance was tested on 25 of the last 50 exams; the sentence is reliable points.

本章重點

1.FRE 401: any tendency to make a fact of consequence more or less probable.
2.CEC § 210: the same test, but the fact must be a disputed fact of consequence.
3.FRE 402 and CEC §§ 350–351: relevant evidence is admissible unless a rule or statute excludes it; irrelevant evidence never is.
4.A stipulation does not remove relevance under the FRE; it can under the CEC.
5.Always name the element the evidence helps to prove.

1.3 Discretionary exclusion: FRE 403 and CEC § 352

Relevant evidence can still be kept out. Both codes give the trial judge a discretionary power to exclude evidence whose value at trial is small compared with the harm it may do. This balance is the last step of every Evidence issue. In California criminal cases it is also the main rule that survives Proposition 8 (section 5). Learn the exact words, because the words decide close cases.

cumulative evidence – Evidence that proves a point the jury has already heard proved by other evidence, so it adds time but little value.

規則

FRE 403: excluding relevant evidence

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues or misleading the jury. Undue delay, wasting time and needlessly presenting cumulative evidence are also grounds.

unfair prejudice – A tendency to lead the jury to decide on an improper basis, usually an emotional one, rather than on what the evidence proves.FRE 403 advisory committee note

構成要件

The six FRE 403 dangers

The judge weighs probative value against the danger of:

1.Unfair prejudice: The jury may decide on emotion, for example by punishing the defendant for being a bad person.
2.Confusing the issues: Side questions distract the jury from the elements it must decide.
3.Misleading the jury: The jury may give the evidence more weight than it deserves.
4.Undue delay: The evidence would slow the trial without a matching gain.
5.Wasting time: The evidence adds nothing the jury needs.
6.Needless cumulation: The point has already been proved by other evidence.

Notice the word substantially. The balance tilts toward admission. The judge may exclude only when the dangers substantially outweigh the probative value; equal weight is not enough, and slight prejudice is never enough. Every relevant piece of evidence hurts the other side; that is not unfair prejudice. The rule targets evidence that invites the jury to decide for a reason other than the fact in issue.

Because the rule says “may”, the decision belongs to the trial judge. An appellate court reverses only for abuse of discretion. On the exam, this means you should rarely write that the evidence “must” be excluded under this rule. Write that the court “may” or “is likely to” exclude it, and give the reason on each side of the balance.

判例

Old Chief v. United States, 519 U.S. 172 (1997) (U.S. Supreme Court 1997)

案情

The defendant was charged with possessing a firearm after a felony conviction. He offered to stipulate that he had a qualifying prior conviction. The prosecution refused and introduced the record showing that the earlier crime was assault causing serious bodily injury.

判決要旨

The name and nature of the prior offense were relevant under FRE 401, so the evidence passed the first step. But once the defendant offered to stipulate to felon status, admitting the full record was an abuse of discretion under the balancing rule. The risk of unfair prejudice substantially outweighed the discounted probative value.

為什麼重要

A stipulation does not make evidence irrelevant under the FRE; it lowers probative value in the balance. The Court kept the general rule that the prosecution may prove its case with evidence of its own choice; the legal-status element is the exception.

查看原文

成文法CA

Cal. Evid. Code § 352

Discretion of court to exclude evidence

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

查看原文

CA加州差異

FRE 403 and § 352

一般規則（聯邦 / 多數州）

FRE 403: the court may exclude relevant evidence if its probative value is substantially outweighed by a listed danger. The dangers are unfair prejudice, confusion, misleading the jury, undue delay, waste of time and needless cumulative evidence.

加州

Cal. Evid. Code § 352: the same balance in California words. The court may exclude evidence whose probative value is substantially outweighed by the probability of undue consumption of time. The same applies to a substantial danger of undue prejudice, confusion or misleading the jury.

The outcomes match, so the distinction is vocabulary. In a CEC answer write “undue prejudice” and “§ 352”; in an FRE answer write “unfair prejudice” and “Rule 403”. In a California criminal case, § 352 is the rule that still lets the judge exclude evidence after Proposition 8.

假設案例

The autopsy photographs

A defendant is on trial in federal court for murder. The cause of death is not contested; the defense is mistaken identity, and the defendant offers to stipulate that the victim died from three gunshot wounds. The prosecution has 20 color autopsy photographs showing the wounds in close detail. At trial, the medical examiner describes each wound. The prosecutor then moves to admit all 20 photographs and asks to show them to the jury on a large screen. The defense objects under FRE 403, arguing that the photographs are cumulative and inflammatory. The prosecution answers that the photographs show the number and placement of the wounds, which support its theory of an intentional killing.

How should the court rule, and would the answer change in a California criminal court?

分析

The photographs are relevant under FRE 401: they tend to prove the cause and manner of death, which are facts of consequence to murder. The stipulation does not remove relevance, but it lowers the probative value of the photographs (Old Chief). On the other side, 20 close-up images carry a real danger of unfair prejudice, and most of them are cumulative of each other. The court is likely to admit a small number that show the number and placement of the wounds and exclude the rest as needlessly cumulative. It is unlikely to exclude all of them, because the prosecution may generally prove intent with evidence of its own choice. In a California criminal court, Proposition 8 makes relevant evidence admissible, but § 352 survives, so the analysis is the same balance in different words. One more point on § 210. A defense offer to stipulate that the prosecution refuses does not remove a fact from dispute. The photographs also tend to prove manner of death and intent, which remain disputed. So they pass § 210, and the case turns on § 352.

應試提示

Section 352 is the last step of every CEC issue and still lets the judge exclude evidence in criminal cases. End each item with one sentence: “The court may exclude it under § 352 if undue prejudice substantially outweighs its probative value.”

重點

Both codes tilt toward admission: exclude only when the dangers substantially outweigh probative value. Harmful is not the same as unfairly prejudicial.

本章重點

1.FRE 403: exclude only if probative value is substantially outweighed by unfair prejudice, confusion, misleading, delay, waste or cumulation.
2.CEC § 352: same balance; the words are undue consumption of time and undue prejudice.
3.The decision is discretionary; write “the court may” or “is likely to”, not “must”.
4.A stipulation lowers probative value under the FRE (Old Chief); under § 210 it can remove relevance.
5.Section 352 survives Proposition 8 and closes every CEC analysis.

1.4 Preliminary facts, limited admissibility and completeness

Before the jury hears an item of evidence, someone must decide the facts that make it admissible. Is this witness an expert? Was this letter written by the defendant? Did the declarant speak while still excited? These are preliminary facts. Both codes divide them between judge and jury, and the division decides how much proof the proponent needs. The same section covers two housekeeping rules, limited admissibility and completeness, that appear in almost every trial transcript.

preliminary fact – A fact on which the admissibility of evidence depends, including whether a witness is qualified and whether a privilege exists.Cal. Evid. Code § 400; FRE 104(a)

conditional relevance – Evidence that is relevant only if some other fact is true, such as a threat that matters only if the defendant heard it.

Who decides the preliminary fact?

規則

Preliminary questions for the judge: FRE 104(a)

The court decides any preliminary question about whether a witness is qualified, a privilege exists or evidence is admissible. In deciding, the court is not bound by the evidence rules, except those on privilege. The proponent must prove the preliminary fact by a preponderance of the evidence.

規則

Conditional relevance for the jury: FRE 104(b)

When relevance depends on whether a fact exists, the proponent need only introduce evidence sufficient to support a finding that the fact exists. The judge screens for that minimum; the jury makes the final finding. The court may admit the evidence on condition that the proof comes later.

The difference is the standard of proof. Under 104(a) the judge must be persuaded, more likely than not, that the foundation exists; the judge may read affidavits and hear hearsay to decide. Under 104(b) the judge asks only whether a reasonable jury could find the fact; if so, the evidence goes in and the jury weighs it. Personal knowledge, authenticity and other-act evidence are 104(b) questions. The proponent carries the burden in both cases.

規則

Preliminary facts under the CEC: §§ 403 and 405

The judge decides most preliminary facts. The jury decides four on evidence sufficient to sustain a finding: conditional relevance, personal knowledge, authenticity, and who made a statement. Authorized and co-conspirator admissions use the same standard.

Who decides the preliminary fact?

Preliminary fact	FRE	CEC
Is the witness qualified as an expert?	FREJudge, FRE 104(a), by a preponderance	CECJudge, § 405
Does a privilege exist?	FREJudge, FRE 104(a); the evidence rules still apply to privilege questions	CECJudge, § 405
Is the foundation for a hearsay exception present?	FREJudge, FRE 104(a) (Bourjaily)	CECJudge, § 405, for most exceptions
Was the declarant the party’s authorized agent or co-conspirator?	FREJudge, FRE 104(a), by a preponderance; the statement counts but is not enough by itself (FRE 801(d)(2))	CECOnly evidence sufficient to sustain a finding, the § 403 standard (§§ 1222(b), 1223(c))
Does the witness have personal knowledge?	FREJury, on evidence sufficient to support a finding, FRE 104(b) and 602	CECJury, § 403(a)(2)
Is the writing authentic?	FREJury, FRE 104(b) and 901	CECJury, § 403(a)(3)
Did this particular person make the statement?	FREJury, FRE 104(b) and 901; identifying the speaker is authentication	CECJury, § 403(a)(4)
Is the other-act evidence relevant only if the defendant committed the act?	FREJury, FRE 104(b) (Huddleston)	CECJury, § 403(a)(1)

CA加州差異

Preliminary facts under CEC §§ 400–405

一般規則（聯邦 / 多數州）

FRE 104 has two boxes. Under 104(a) the judge decides admissibility facts by a preponderance. Under 104(b) facts of conditional relevance go to the jury on evidence sufficient to support a finding. Whether a declarant was the party’s agent or co-conspirator is a 104(a) question (Bourjaily).

加州

The CEC uses the same split: § 403 facts go to the jury on sufficient evidence, and § 405 facts go to the judge. But for authorized and co-conspirator admissions, §§ 1222(b) and 1223(c) require only evidence sufficient to sustain a finding.

The practical difference is vicarious admissions. Under the FRE the judge must be persuaded of the agency or conspiracy. Under the CEC the proponent needs only enough evidence for a reasonable finding. Write § 403 or § 405 by name when the call is CEC.

Limited admissibility

limiting instruction – A judge’s instruction that the jury may consider an item of evidence only against a named party or only for a named purpose.

規則

Limited admissibility: FRE 105 and CEC § 355

Some evidence is admissible against one party or for one purpose, but not against another party or for another purpose. On request, the court must then restrict the evidence to its proper scope and instruct the jury accordingly. The instruction is not automatic: the opponent must ask for it.

範例

Impeachment only

In a federal civil trial, a witness testifies that the light was red. The defendant offers the witness’s earlier unsworn statement to an investigator that the light was green.

分析

The earlier statement is inconsistent, so it is admissible to impeach the witness. It was not made under oath at a proceeding, so it is not exempt from the hearsay rule under FRE 801(d)(1)(A). It cannot be used to prove that the light was green. Under FRE 105, the plaintiff should request a limiting instruction. In California, § 1235 admits it for its truth once the § 770 foundation is met, so no limit is needed.

結果

Admitted for impeachment only in federal court, with a limiting instruction on request; admitted for all purposes in California.

The rule of completeness

規則

The rule of completeness: FRE 106

If a party introduces all or part of a statement, the adverse party may require any other part, or any other statement, to come in at that time. The rule reaches only what in fairness ought to be considered with the first part. Since the 2023 amendment it covers oral statements and applies over a hearsay objection.

成文法CA

Cal. Evid. Code § 356

Entire act, declaration, conversation or writing may be brought out to elucidate part offered

Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

查看原文

Completeness under the FRE is a timing rule. The opponent does not have to wait for cross-examination: the parts that fairness requires come in at once, so the jury never hears a misleading fragment. The rule does not admit the whole remainder. California § 356 has no timing rule. It lets the adverse party inquire into the whole on the same subject, usually on cross-examination. It also reaches any act, declaration, conversation or writing.

重點

Judge: qualification, privilege and most hearsay foundations, by a preponderance. Jury: conditional relevance, personal knowledge and authenticity, on sufficient evidence. California also uses the sufficient-evidence standard for agency and conspiracy foundations.

應試提示

MBE distractors say “the judge must find the fact by a preponderance” for authenticity or personal knowledge. Those are 104(b) questions: the standard is evidence sufficient to support a jury finding, and the jury decides.

本章重點

1.FRE 104(a): the judge decides admissibility facts by a preponderance and may use inadmissible evidence, except privileged matter.
2.FRE 104(b): conditional relevance needs only evidence sufficient to support a finding; the jury decides.
3.CEC § 403 gives the jury four foundations; for agency and conspiracy admissions, §§ 1222–1223 need only evidence sufficient to sustain a finding.
4.FRE 105 and § 355: a limiting instruction restricts evidence to one party or purpose, on request.
5.FRE 106: the opponent may require, at once, only the parts that fairness requires; § 356 allows inquiry into the whole on the same subject.

1.5 Proposition 8: the Truth-in-Evidence rule

Proposition 8 (Prop 8) is the reason Evidence essays with a California call feel different from the MBE. In June 1982 California voters passed an initiative called the Victims’ Bill of Rights. One part, the “Right to Truth-in-Evidence”, was written to stop courts from excluding relevant evidence in criminal cases. It sits in the state constitution, so it overrides the Evidence Code wherever the two conflict.

成文法CA

Cal. Const., art. I, § 28(f)(2)

Right to Truth-in-Evidence

Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. …

查看原文

Truth-in-Evidence rule – The Proposition 8 rule that relevant evidence shall not be excluded in a California criminal proceeding unless an exception in the provision applies.

規則

What Prop 8 does

Under the Truth-in-Evidence rule, relevant evidence is admissible in a California criminal proceeding even if an Evidence Code section would exclude it. Exception: the section is one that Prop 8 preserves. It applies to both sides and to pretrial and post-conviction hearings. It does not apply in civil cases.

What survives Prop 8

構成要件

Rules that still exclude relevant evidence in a criminal case

Relevant evidence stays out in a California criminal case when one of these applies:

1.Hearsay: Existing hearsay rules and exceptions keep their full force.
2.Privilege: Every existing statutory privilege keeps its full force.
3.§ 352: The judge’s § 352 discretion to exclude is expressly preserved.
4.§§ 782 and 1103: The rape-shield procedure (§ 782) and the victim-character rules (§ 1103) are named in the text.
5.Character rules: The propensity bar of Cal. Evid. Code § 1101(a) still applies in criminal trials, with its exceptions in §§ 1102–1103.
6.Two-thirds statutes: Any exclusionary statute passed after June 1982 by a two-thirds vote of each house of the Legislature.
7.U.S. Constitution: Federal constitutional limits, such as the Fourth Amendment exclusionary rule, Miranda and the Confrontation Clause, are unaffected.

Hearsay and privileges (chapters 7 to 10) survive in full, § 352 survives by name, and the character rules still apply. So the biggest practical change is in impeachment of witnesses (chapter 6). The second change is suppression: the state-law exclusionary rule is gone, so evidence is suppressed only when federal constitutional law, or a two-thirds statute, requires it.

Impeachment after Prop 8

moral turpitude – Conduct showing a general readiness to do evil, including dishonesty, which suggests that the person may be willing to lie under oath.People v. Castro (1985) 38 Cal.3d 301

規則

The Evidence Code impeachment limits

Outside criminal cases, a witness may be impeached with a prior conviction only if it is a felony. Evidence of specific instances of conduct may not be used to attack credibility. In a criminal case those limits no longer bind.

A separate clause of Prop 8 says that prior felony convictions shall be used “without limitation” for impeachment. The courts still require moral turpitude and keep the § 352 balance. Older cases cite the Truth-in-Evidence rule as former § 28(d) and this clause as former § 28(f); both were renumbered in 2008.

成文法CA

Cal. Const., art. I, § 28(f)(4)

Use of Prior Convictions

Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.

查看原文

規則

Impeachment after Prop 8

If the offense involves moral turpitude, a witness in a criminal case may be impeached with a prior felony conviction or with past misdemeanor conduct. The trial court keeps its § 352 discretion to exclude the impeachment when its prejudice substantially outweighs its value on credibility.

判例

People v. Castro, (1985) 38 Cal.3d 301 (California Supreme Court 1985)

案情

The defendant was impeached with prior felony convictions. The court had to fit Prop 8’s “without limitation” clause with § 352 and with due process.

判決要旨

A prior felony conviction may impeach only if the crime necessarily involves moral turpitude. Dishonesty is not required. The trial court keeps its § 352 discretion to exclude the conviction.

為什麼重要

Prop 8 allows felony impeachment, but only for crimes of moral turpitude, and § 352 may still exclude it.

判例

People v. Wheeler, (1992) 4 Cal.4th 284 (California Supreme Court 1992)

案情

The question was whether, after Proposition 8, misdemeanor conduct may impeach a witness in a criminal case.

判決要旨

Past misdemeanor conduct involving moral turpitude is admissible to impeach a witness in a criminal case, subject to the § 352 balance. A misdemeanor conviction record was hearsay, so the conduct had to be proved another way.

為什麼重要

Since Wheeler, subdivision (b) of Cal. Evid. Code § 452.5 makes a certified record of conviction admissible to prove the conduct.

判例

In re Lance W., (1985) 37 Cal.3d 873 (California Supreme Court 1985)

案情

A minor sought to suppress search evidence that earlier California decisions, but not federal Fourth Amendment law, would have excluded.

判決要旨

Proposition 8 abolished the independent state-law exclusionary rule. Evidence obtained by a search or seizure is excluded in California only when the federal Constitution requires exclusion.

為什麼重要

In a California criminal case the judge-made state exclusionary rule is gone. Decide suppression of search evidence under federal Fourth Amendment law.

Does Proposition 8 apply?

Proceeding	Prop 8 applies?	Result
Civil trial in California	Prop 8 applies?No	ResultThe Evidence Code applies in full.
Criminal trial	Prop 8 applies?Yes	ResultRelevant evidence is admissible unless a surviving rule excludes it.
Criminal pretrial or post-conviction motion	Prop 8 applies?Yes	ResultSame as at trial; evidence is suppressed only when federal constitutional law, or a two-thirds statute, requires it.
Juvenile tried for a criminal offense	Prop 8 applies?Yes	ResultThe text covers juvenile and adult court.
Federal court or the MBE	Prop 8 applies?No	ResultProp 8 is a California rule; the FRE control.

假設案例

Impeaching the store guard

In a California criminal trial for robbery of a store, the main prosecution witness is the store’s security guard. On direct examination, he identifies the defendant as the robber: he says he saw the defendant take cash from the register and run. No other witness saw the robbery, and there is no video. On cross-examination, defense counsel asks the guard whether, four years earlier, he took money from a former employer’s cash register. That conduct led to a misdemeanor petty-theft conviction. The prosecutor objects that § 787 bars specific instances of conduct and that § 788 allows impeachment only by a felony conviction.

Should the court allow the question?

分析

The issue is whether misdemeanor conduct may impeach a prosecution witness under the CEC. Sections 787 and 788 alone would bar it. However, this is a criminal proceeding, so Proposition 8 applies to evidence offered by either side, and §§ 787 and 788 are not preserved rules. Theft shows dishonesty, so it involves moral turpitude. Under Wheeler, the conduct is admissible to impeach, subject to § 352. Here, the conduct is fairly recent, it goes to honesty, and the guard’s identification is central. Therefore, the court is likely to overrule the objection.

應試提示

In a criminal case with a CEC call, write one Proposition 8 paragraph right after relevance, then say whether each rule survives. Prop 8 was tested on 8 of the last 50 exams.

本章重點

1.Prop 8 (Cal. Const., art. I, § 28(f)(2)): relevant evidence shall not be excluded in a criminal proceeding.
2.Survivors: hearsay, privilege, § 352, §§ 782 and 1103, the character rules, two-thirds statutes, the U.S. Constitution.
3.Impeachment: a felony conviction or misdemeanor conduct, but only if the offense involves moral turpitude; subject to § 352 (Castro, Wheeler).
4.Suppression: the judge-made state exclusionary rule is gone; federal constitutional law or a two-thirds statute decides (In re Lance W.).
5.Civil case or federal court: Prop 8 is irrelevant.

1.6 The six-step CEC template

A California Evidence essay usually lists five to eight items of evidence and asks about each one. Graders score each item against the same checklist, so a fixed order earns points faster than free-form analysis. This section turns the six steps from section 1 into a paragraph template you can write in six minutes per item. Later chapters supply the rules for steps 3, 4 and 5; the frame does not change.

attack order – The fixed sequence of questions a candidate applies to every item of evidence so that no issue is missed and the answer is simple to grade.

構成要件

The six-step CEC template

For each item of evidence, follow the same attack order and write one short paragraph per step:

1.1 Relevance: Name the disputed fact of consequence the evidence tends to prove (§ 210) and the element it belongs to.
2.2 Proposition 8: If the case is criminal, state that relevant evidence is admissible unless a surviving rule excludes it.
3.3 Specific rule: Apply the rule the facts trigger: character, policy exclusion, opinion, impeachment, authentication or the Secondary Evidence Rule.
4.4 Hearsay: Ask whether the evidence is an out-of-court statement offered for its truth; if so, find an exception or a non-hearsay purpose.
5.5 Privilege: Check whether a holder can assert a privilege and whether it was waived.
6.6 Section 352: Close with the balance: probative value against undue prejudice and undue consumption of time.

記憶口訣

R-8-R-H-P-352

R– Relevance: a disputed fact of consequence
8– Proposition 8, if the case is criminal
R– Rule: the specific exclusionary rule the facts trigger
H– Hearsay and its exceptions
P– Privilege
352– Section 352 balance

Read it as a checklist, not a word. On the FRE default, drop the 8 and use Rule 403 in place of § 352 at the end.

Steps 1, 2 and 6 are the same for every item, so write them fast and spend your time on the middle steps. Step 2 is one sentence when the case is criminal and is omitted when the case is civil. Step 6 is one sentence unless the facts show real prejudice, such as gruesome photographs or a prior crime. The graded points are in steps 3 to 5, where the facts decide.

Use the signpost vocabulary on every step: “The issue is whether …”, “Under the CEC …”, “Here, …”, “However, …”, “Therefore …”. Graders read for headings and for a rule sentence followed by a fact sentence. A non-native writer who keeps this structure under time pressure will outscore a fluent writer who has no structure.

應試提示

Open each CEC answer with one sentence that fixes the law, and add Proposition 8 only in a criminal case. Example: “This is a California criminal case, so the CEC applies, and Proposition 8 admits relevant evidence unless a preserved rule excludes it.”

IRAC

爭點: Whether [item of evidence] is admissible under the California Evidence Code.
規則: Relevance: under § 210, evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact of consequence. Prop 8: in a criminal case, relevant evidence shall not be excluded unless a preserved rule applies (hearsay, privilege, § 352, the character rules, two-thirds statutes, the U.S. Constitution). Specific rule: state the rule the facts trigger. Hearsay: an out-of-court statement offered for its truth is inadmissible unless an exception applies (§ 1200). Privilege: state the privilege, its holder and any waiver. Balance: under § 352 the court may exclude evidence whose probative value is substantially outweighed by undue prejudice or undue consumption of time.
涵攝: Here, [the evidence] tends to prove [fact], which is disputed because [reason]. Because this is a criminal case, Prop 8 applies, and [rule] is / is not a preserved rule. [Apply the specific rule to the facts, then the hearsay chain, then privilege.] [The opponent] will argue that [prejudice]; however, [probative value].
結論: Therefore, the court is likely to admit / exclude [the evidence].

範例

One item, six steps

In a California prosecution for robbery, the defendant’s alibi is that he was at a friend’s home. The prosecution offers a printout of a text message the defendant sent that evening: “Just left the mall, police everywhere.” The robbery happened at the mall.

分析

Step 1: the message tends to prove the defendant was at the mall, a disputed fact about identity. Step 2: Prop 8 applies. Step 3: authenticate the message. It is a writing, and a printout that reflects the data accurately is an original (§ 255). A copy would be admissible under § 1521 unless its terms are genuinely disputed. Step 4: hearsay, but § 1220 admits a party’s own statement. Step 5: no privilege. Step 6: high value, little prejudice.

結果

Admissible, subject to authentication.

應試提示

Do not skip step 1 or step 6 because they look obvious. Graders use a checklist, and each item of evidence has a relevance point and a § 352 point. Two sentences per item earn them.

重點

Same six steps, every item, every time: relevance, Prop 8, rule, hearsay, privilege, § 352 balance.

本章重點

1.Open with one sentence fixing the law: the CEC, plus Prop 8 if the case is criminal.
2.Steps 1, 2 and 6 are the same for every item; write them quickly.
3.Steps 3 to 5 carry most of the points; that is where the facts decide.
4.Use the signposts: the issue is whether, under, here, however, therefore.
5.On the FRE default, drop Prop 8 and use FRE 403 in place of § 352.

1.7 Review

This review has two MBE questions under the FRE, two California questions under the CEC, and one 15-minute essay drill. Answer each question before opening the explanation. The MBE questions test the low relevance bar and the FRE 403 balance. The California questions test the “disputed fact” requirement and Proposition 8 in a criminal case. The chapter glossary follows the questions.

注意

How to use this review

Time yourself: 1.8 minutes for each multiple-choice question and 15 minutes for the essay drill. Then compare your essay with the model answer and check that you wrote all six steps.

練習 · MBE

A pedestrian sued a driver for negligence in federal court after being struck in a crosswalk. The pedestrian sought compensatory damages only and did not plead punitive damages. At trial, the pedestrian called the driver’s accountant to testify that the driver owned three restaurants and had a net worth of over $10 million. The driver objected. The pedestrian argued that the jury should know the driver could afford to pay a judgment. Is the accountant’s testimony admissible?

Yes, because a defendant’s ability to pay a judgment is a fact of consequence in any damages action.Yes, because the testimony is relevant background about the parties and its probative value is not substantially outweighed by unfair prejudice.No, because the driver’s wealth has no tendency to make careless driving, or the amount of the pedestrian’s loss, more or less probable.No, because although the testimony is relevant, its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403.

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答案：C

The driver’s wealth does not tend to prove any element of negligence or the measure of compensatory damages, so it fails FRE 401 and is inadmissible under FRE 402. Option A is wrong because ability to pay is not an element; wealth becomes a fact of consequence only when punitive damages are claimed. Option B assumes relevance and then applies Rule 403; the evidence never reaches the balance. Option D reaches the right result for the wrong reason: Rule 403 excludes relevant evidence, and this evidence is not relevant. On the MBE, choose the ground that comes first in the analysis.

C. The precise ground is relevance (FRE 401–402), not the Rule 403 balance. A wrong-reason option like D is a common MBE trap: it states a real rule that does not apply to these facts.

練習 · MBE

A defendant was charged in federal court with murdering a shopkeeper. The defense was that another person committed the killing. Before trial, the defendant offered to stipulate that the shopkeeper died from two gunshot wounds to the chest. The prosecutor refused the stipulation and offered 20 color autopsy photographs showing the wounds from many angles. The prosecutor argued that the number and placement of the wounds showed an intentional killing. The defendant objected that the photographs were cumulative and inflammatory. How should the court rule?

Exclude all of the photographs, because the defendant’s stipulation removed the cause of death from dispute.Admit a small number of the photographs sufficient to show the number and placement of the wounds, and exclude the rest.Admit all of the photographs, because they are relevant and the prosecution is never required to accept a stipulation.Admit the photographs only if the defendant testifies and disputes the cause of death.

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答案：B

Under FRE 401 the photographs remain relevant despite the stipulation; they tend to prove cause, manner and intent, which are facts of consequence. Under FRE 403 the court may exclude relevant evidence whose probative value is substantially outweighed by unfair prejudice or needless cumulation. Twenty close-up images are largely cumulative, and the risk of an emotional verdict is real, so the court should admit enough photographs to show the number and placement of the wounds and exclude the rest. Option A is wrong because a stipulation does not make evidence irrelevant under the FRE (Old Chief). Option C ignores the court’s discretion. Option D invents a condition that no rule imposes.

B. The FRE 403 answer is almost always “some but not all”. Remember Old Chief: the prosecution may generally prove its case its own way, but the balance still applies to cumulative and gruesome evidence.

練習 · MBE

The shopkeeper’s family sued the alleged killer for wrongful death in California superior court. Before trial, the parties filed a written stipulation that the shopkeeper died from two gunshot wounds to the chest and that the cause of death would not be contested. The only disputed issue at trial was whether the defendant was the shooter. The plaintiffs offered the same 20 autopsy photographs to prove the cause of death. The defendant objected. Under the California Evidence Code, how should the court rule?

Admit the photographs, because under § 210 a stipulation does not affect the relevance of evidence.Admit the photographs, because Proposition 8 requires that relevant evidence not be excluded.Exclude the photographs only if the court finds under § 352 that their probative value is substantially outweighed by undue prejudice.Exclude the photographs, because the cause of death is not a disputed fact and the photographs are therefore irrelevant under § 210.

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答案：D

Cal. Evid. Code § 210 defines relevant evidence as evidence tending to prove a disputed fact of consequence. The stipulation removed the cause of death from dispute, and the photographs were offered only to prove that fact, so they are irrelevant and inadmissible under § 350. Option A states the federal rule, not the California rule. Option B is wrong because this is a civil action and Proposition 8 applies only in criminal proceedings. Option C reaches § 352 too early: the court weighs probative value only for relevant evidence, and here there is none.

D. The one-word difference decides the question: “disputed”. In a criminal case the analysis would add Prop 8, but Prop 8 admits only relevant evidence, so § 210 still comes first.

練習 · MBE

A defendant was tried in California superior court for residential burglary. The defendant testified that she was at work on the day of the burglary. On cross-examination, the prosecutor asked whether, two years earlier, the defendant had taken a jacket from a department store without paying, conduct for which she was convicted of misdemeanor petty theft. Defense counsel objected, citing § 788, which allows impeachment only by felony conviction, and § 787, which bars specific instances of conduct offered to attack credibility. Should the court allow the question?

Yes, because Proposition 8 permits impeachment with past conduct involving moral turpitude in a criminal case, subject to § 352.Yes, because § 788 permits impeachment with any prior conviction, felony or misdemeanor, once the defendant testifies.No, because § 788 limits impeachment to felony convictions, and Proposition 8 preserved the existing rules on impeachment.No, because § 787 bars specific instances of conduct to attack credibility, and Proposition 8 preserved it as a rule of hearsay.

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答案：A

This is a criminal proceeding, so Proposition 8 applies: relevant evidence shall not be excluded unless a preserved rule applies. Sections 787 and 788 are not preserved rules; they are not hearsay, privilege, § 352, § 782 or § 1103 rules. Theft involves dishonesty and therefore moral turpitude, so the conduct is relevant to the defendant’s credibility (People v. Wheeler). The court keeps its § 352 discretion. The theft is recent and bears directly on honesty, which favors admission. But it is similar to the charged burglary, which raises the risk that the jury will use it as propensity evidence. The court may still allow the question, perhaps with a limiting instruction. Option B misstates § 788, which covers felonies only. Options C and D wrongly treat §§ 787 and 788 as preserved rules.

A. Prop 8 allows the impeachment; § 352 may still exclude it. Note the contrast with the MBE: under the FRE, impeachment by conviction is governed by FRE 609 and impeachment by specific conduct by FRE 608(b), with no Prop 8 overlay.

練習 · MBE

A defendant is on trial in California superior court for assault with a deadly weapon after a fight outside a bar. The defendant claims self-defense and says that the victim attacked first. In its case-in-chief, before the defendant has offered any evidence, the prosecution calls the defendant’s neighbor. The neighbor has lived next door to the defendant for ten years. The neighbor testifies: “Everyone on our street knows the defendant has a terrible temper. He is the kind of person who starts fights.” Defense counsel objects. The prosecutor responds that the testimony is relevant to show that the defendant, not the victim, started the fight, and that under Proposition 8 relevant evidence is admissible in a criminal case. The defendant has not testified and has not offered any evidence of his own character or the victim’s character. Discuss whether the neighbor’s testimony is admissible. Answer according to the California Evidence Code. Write your answer in 15 minutes, then choose the conclusion below that matches your analysis.

Admissible, because Proposition 8 makes all relevant evidence admissible in a criminal case and § 352 does not require exclusion.Admissible as reputation evidence under § 1324, which is a preserved hearsay exception.Inadmissible, because § 1101(a) bars the prosecution’s propensity evidence, Proposition 8 does not override it, and § 352 supports exclusion.Inadmissible, because the testimony is not relevant to any disputed fact of consequence under § 210.

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答案：C

Run the six steps. Relevance: the testimony tends to prove that the defendant started the fight, a disputed fact under § 210. Prop 8: criminal case, so relevant evidence comes in unless a preserved rule excludes it. Specific rule: § 1101(a) bars character evidence offered to prove conduct on a particular occasion. The prosecution may not offer the defendant’s character until the defendant does (§ 1102), and § 1103(b) is not triggered because the defendant offered no evidence of the victim’s character. The character rules still apply after Prop 8. Hearsay: § 1324 covers reputation, but a hearsay exception cannot cure a propensity problem. Section 352 adds a second ground. Option D fails at step 1; options A and B stop too early.

Admissibility of the neighbor’s testimony The issue is whether the neighbor’s testimony about the defendant’s temper is admissible under the California Evidence Code. Relevance. Under § 210, evidence is relevant if it has any tendency in reason to prove a disputed fact of consequence. Here, who started the fight is disputed because the defendant claims self-defense, and a reputation for starting fights makes it more likely that the defendant was the aggressor. Therefore the testimony is relevant. Proposition 8. This is a criminal proceeding, so under article I, § 28(f)(2) of the California Constitution relevant evidence shall not be excluded unless a preserved rule applies. The preserved rules include hearsay, privilege, § 352 and the character-evidence rules in §§ 1101–1103, which California courts continue to apply in criminal cases. Character evidence. Under § 1101(a), evidence of a person’s character, including reputation, is inadmissible when offered to prove conduct on a specified occasion. Under § 1102, the prosecution may offer the defendant’s character only to rebut character evidence that the defendant offered first. Here, the prosecution offers reputation evidence of a violent temper to prove that the defendant started this fight, which is propensity reasoning, and the defendant has offered nothing to rebut. Nor does § 1103(b) apply, because the defendant has offered no evidence of the victim’s violent character. The prosecutor will argue that Proposition 8 removes the bar. However, the character rules survive Proposition 8, so the argument fails. Hearsay. Reputation in the neighborhood is a collection of out-of-court statements, but § 1324 admits evidence of reputation concerning character. The exception does not help the prosecution, because the propensity bar, not hearsay, is the problem. Section 352. Even if the testimony were otherwise admissible, the court may exclude it because its probative value is substantially outweighed by undue prejudice: the jury may convict the defendant for being a violent person rather than for this act. Therefore, the neighbor’s testimony is inadmissible, and the objection should be sustained.

Chapter glossary

– An out-of-court statement offered to prove the truth of what it asserts; inadmissible unless an exception or exemption applies.

– A legal right of a holder to refuse to disclose, and to stop others from disclosing, certain confidential communications.

– An agreement between the parties that a fact is true, so that no evidence is needed to prove it.

– A party’s statement to the judge, with the legal ground, that evidence should not be admitted; it must be made promptly.

– The person who made an out-of-court statement.

– The preliminary facts a proponent must show before an item of evidence is admissible, such as authenticity or personal knowledge.

– Evidence or questioning offered to reduce a witness’s credibility.

– Evidence of a person’s general disposition, offered by reputation, opinion or specific acts.

– The federal constitutional rule that evidence obtained by an unlawful search or seizure is generally inadmissible against the defendant.

– A judge’s ruling that agrees with an objection and keeps the evidence out; the opposite ruling is to overrule.

– The standard of appellate review for discretionary rulings such as § 352; reversal only if the ruling was unreasonable.

– The part of the trial in which a party presents its main evidence, before any rebuttal.

規則

The chapter in one rule

Relevant evidence, any evidence with a tendency to prove a fact of consequence (disputed, under the CEC), is admissible unless a rule excludes it. The court may still exclude it when probative value is substantially outweighed by unfair or undue prejudice. In a California criminal case, Prop 8 sets aside Evidence Code exclusions it does not preserve.

Authorities in this chapter

Topic	FRE	CEC or Cal. Const.
Relevance defined	FREFRE 401	CEC or Cal. Const.§ 210 (disputed fact)
Relevant evidence admissible	FREFRE 402	CEC or Cal. Const.§§ 350–351
Discretionary exclusion	FREFRE 403	CEC or Cal. Const.§ 352
Preliminary facts	FREFRE 104(a)–(b)	CEC or Cal. Const.§§ 400–405
Limited admissibility	FREFRE 105	CEC or Cal. Const.§ 355
Completeness	FREFRE 106	CEC or Cal. Const.§ 356
Truth-in-Evidence	FRENone	CEC or Cal. Const.art. I, § 28(f)(2)
Impeachment after Prop 8	FRECompare FRE 608–609	CEC or Cal. Const.§§ 787–788 displaced; art. I, § 28(f)(4); Castro; Wheeler

重點

If you remember one thing: relevance is a low bar, § 352 is a high bar, and Prop 8 changes only criminal cases.

本章重點

Chapter summary

1.Relevance: any tendency to prove a fact of consequence (FRE 401); the CEC adds that the fact must be disputed (§ 210).
2.Relevant evidence is admissible unless excluded; irrelevant evidence never is (FRE 402; §§ 350–351).
3.The judge may exclude relevant evidence only when its probative value is substantially outweighed (FRE 403; § 352).
4.The judge decides admissibility facts by a preponderance; the jury decides conditional relevance, personal knowledge and authenticity (FRE 104; §§ 403–405).
5.Prop 8 admits relevant evidence in California criminal cases, but hearsay, privilege, § 352, the character rules and the Constitution survive.
6.Every item, six steps: relevance, Prop 8, rule, hearsay, privilege, § 352.

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