The Rules of Evidence Quick Guide Notes

The Practice of Law During Trial

There is a fundamental difference between the academic study of law and the actual practice of law during a trial. While textbooks and treatises provide comprehensive historical and philosophical underpinnings for concepts like hearsay, these are of limited utility in a trial setting. The practice of law during litigation requires the ability to spot issues and seamlessly apply rules at a moment’s notice. The goal of this guide is to explain how to apply evidentiary rules under the pressure of trial, where knowing the correct objection at the precise moment is imperative.

Step One: The Threshold Inquiry of Relevance

Relevance is the primary threshold inquiry for every piece of evidence. Judges are afforded broad discretion when deciding most evidentiary issues, but they have no discretion to admit irrelevant evidence. This is codified in Federal Rule of Evidence $402$ , which states that "Irrelevant evidence is not admissible," and California Evidence Code Section $350$ , which mandates that "No evidence is admissible except relevant evidence." Once a judge determines evidence is relevant, the subsequent analysis often falls under an abuse of discretion standard.

Under Federal Rule of Evidence $401$ , evidence is defined as relevant if it meets two criteria: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. The threshold for the "any tendency" requirement is notably low. Further, the Federal Rules do not require a fact to be disputed to be considered "of consequence," as noted in the Advisory Committee Notes ( $1972$ ) to Rule $401(b)$ .

In contrast, California Evidence Code Section $210$ requires that the fact being proven or disproven be a "disputed fact" that is of consequence to the determination of the action. This definition includes evidence relevant to the credibility of a witness or hearsay declarant. In California, evidence regarding matters removed from the jury's consideration via stipulation or party admission is considered irrelevant because the fact is no longer disputed. Despite this distinction, witness credibility is virtually always relevant in both jurisdictions. In federal courts, a witness's truthfulness and candor are consistently considered "of consequence" to the action.

Arguments and Offers of Proof

Lawyers often fail in relevance arguments by focusing on whether the evidence proves the ultimate point of the case. However, the strength of the evidence is immaterial to its relevance. As established in Dorth v. Fowler, $588$ F. $3d$ $396$ , $401$ ( $6th$ Cir. $2009$ ), evidence does not need to carry a party's entire evidentiary burden; it simply needs to "advance the ball."

When an objection is sustained, the proponent of the evidence must be prepared to make a proper offer of proof to preserve the claim of error for appeal. According to Federal Rule of Evidence $103(a)(2)$ and California Evidence Code Section $354(a)$ , the party must inform the court of the evidence’s substance, purpose, and relevance. The Federal Rules specifically cite California’s Evidence Code as an exemplar for proper objection and offer of proof techniques.

Step Two: Foundation and Authentication

Before evidence is admitted, a proper foundation must be established to support its accuracy or authenticity. For eyewitness or percipient testimony, the foundation is personal knowledge. Federal Rule of Evidence $602$ and California Evidence Code Section $702$ both dictate that a witness may only testify if evidence is introduced sufficient to support a finding that they have personal knowledge of the matter. This foundation is like a chain of logic: to testify that a traffic light was red, the witness must first establish they were at the scene at the time of the accident and were in a position to see the light.

For writings, the proponent must provide evidence sufficient to support a finding that the item is what the proponent claims it to be, as per Federal Rule of Evidence $901$ and California Evidence Code Section $1400$ . The trial court does not need to conclusively prove authenticity; it only determines if there is "sufficient" evidence for a jury to find it authentic. Conflicting testimony regarding authenticity (e.g., one witness saying a letter is real and another saying it is fake) goes to the weight of the evidence, not its admissibility, as seen in McAllister v. George, $73$ Cal. App. $3d$ $258$ , $261$ – $263$ ( $1977$ ).

Step Three: Hearsay and Its Limitations

Navigating hearsay requires a system to recognize objectionable statements and viable exceptions efficiently. Constant, thoughtless hearsay objections can undermine a lawyer's credibility. To identify objectionable hearsay, one can ask if the probative value of the evidence depends on the credibility of a witness who cannot be cross-examined.

Another method is the "match test": determine the reason the evidence is being offered and see if it match the statement's contents. If a statement like "It is sunny in Los Angeles" is offered to prove it was sunny, it is hearsay. If it is offered to prove the listener recognized the speaker's voice, there is no match, and it is not hearsay. Hearsay is generally excluded because the law prefers material statements to be subject to cross-examination. Exceptions exist when the hearsay is trustworthy, necessary, or both. For example, California Evidence Code Section $1271$ allows business records because the method of preparation indicates trustworthiness.

To quickly identify specific exceptions among the dozens available, litigators should categorize the evidence into four groups: Admissions (express, adoptive, or co-conspirator), Prior Statements, Writings, and History. Knowing the category significantly narrows the list of potential exceptions to consider.

Step Four: Exclusions Based on Policy and Privilege

Relevant evidence may be excluded for specific policy or privilege reasons. Character evidence is often conflated with relevance; however, character evidence is relevant but specifically limited or excluded for policy reasons. Common exclusions include character evidence, legal privileges, and settlement communications. Other case-specific exclusions include subsequent remedial measures, which are typically irrelevant in breach of contract cases but relevant in others.

Step Five: Prejudice and the TIPM Standard

Lawyers must be cautious when arguing that evidence is "too prejudicial," as all adverse evidence is prejudicial to some degree. California Evidence Code Section $352$ and Federal Rule of Evidence $403$ provide the court with discretion to exclude evidence if its probative value is substantially outweighed by specific factors. These factors can be remembered using the acronym "TIPM":

Time: Undue consumption of time.
Issues: Danger of confusing the issues.
Prejudice: Substantial danger of undue prejudice.
Misleading: Danger of misleading the jury.

The court’s role is to weigh whether the probative value is substantially outweighed by these four TIPM considerations.

About David Sugden

David Sugden is a business trial lawyer and shareholder at the Newport Beach firm Call & Jensen. Recognized as one of the "Top $50$ Super Lawyers in Orange County" in $2018$ and one of "California’s $20$ Top Attorneys Under $40$ ," Sugden has secured multiple seven- and eight-figure jury verdicts and judgments. He has served as lead counsel in complex litigation across several states, including California, New York, Texas, Oklahoma, Florida, New Jersey, Tennessee, and Georgia, and is frequently brought into cases on the eve of trial.