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Abstract:
Only relevant evidence is admissible, but modern evidence law accepts a very broad definition of relevant evidence. Evidence satisfies the standard if it has any tendency to affect the probability that a fact provable in the case is true. Virtually all evidence a party might wish to present at trial will be deemed relevant, and for that reason the relevance rule seldom excludes evidence.

Under the Federal Rules of Evidence, evidence is defined as relevant even if a party concedes the fact the opponent's evidence is offered to prove. If such evidence is to be excluded, it must be pursuant to another rule (such as the rule permitting the trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, the risk that the jury will be distracted, or the likelihood that its admission will constitute a waste of time). California law differs. Under that state's Evidence Code, evidence offered to prove an undisputed fact is defined as irrelevant and therefore is inadmissible.

The purpose of this article is to examine whether there is any meaningful substance to the technically more demanding relevance standard of California law. In particular, the article analyzes whether a criminal defendant may minimize the prejudicial effect of uncharged misconduct evidence (evidence of other crimes or wrongs) by conceding the fact such evidence would be offered to prove, thus rendering the evidence irrelevant and inadmissible. The article concludes that, for two main reasons, this effort generally will fail.

First, the Supreme Court's decision in Old Chief v. United States, 519 U.S. 172 (1997) makes clear that a stipulation indicating concession of a material fact is rarely an adequate substitute for the evidence it seeks to exclude. That evidence has far more richness and story-telling value than a dry statement read to the jury. California courts are not bound by the decision in Old Chief, but what little authority exists suggests that they accept its general proposition. Second, even if a defendant can persuade the court that her concession renders the uncharged misconduct evidence irrelevant for one purpose, it is usually relevant to prove another material fact that defendant does not concede. Thus, in most cases, the tighter definition of relevant evidence offers no meaningful assistance to the defendant.

Nevertheless, legislative history indicates that the drafters of the California Evidence Code consciously included the requirement that evidence be offered to prove a disputed fact, and general principles of statutory interpretation provide that when possible, statutory language should be presumed to have meaning. Thus, if the uncharged misconduct evidence is only permissibly usable to prove a fact defendant has conceded, a California court should be less willing to admit the evidence than a federal court working with a broader definition of relevant evidence. If California courts adopt this approach to their own code, criminal defendants will be less burdened by the risk of the jury's misuse of this volatile type of evidence.

Abstract:
In public and private affairs alike, it is frequently important, and sometimes essential, to determine whether a person knew a certain fact at a particular time. During the Watergate scandal, the key question was what President Nixon knew and when he came into possession of that knowledge. Knowledge was an important issue during the Congressional investigations in to the Iran-Contra scandal as well. As people attempt to assess blame for the collapse of giant energy company Enron, they are asking the same question. In civil actions for fraud or prosecutions for possession of stolen goods or sale of illegal narcotics, conviction requires proof of knowledge. From the mundane drug case to the huge corporate failure and to matters of the highest national interest, the question of knowledge looms large.

Because a person's state of mind cannot be perceived directly, knowledge must always be proven circumstantially. If the circumstances of the event at issue supply a basis for an inference of the mental state, proof of those circumstances is rarely objectionable. But when proof of a particular mental state on one occasion is supplied by evidence of the same mental state on another occasion, and when that other occasion involved conduct that reflects adversely on the actor's character, the court must consider whether admission of the evidence would violate the rule forbidding guilt by character. Whether the evidence will be admissible depends in the first instance on whether it is relevant on a sufficiently compelling non-character basis. That determination, in turn, implicates a long-standing rule of evidence law that permits evidence of other misconduct to be used as long as its relevance does not depend on a forbidden character inference.

In some situations the probative value of uncharged misconduct evidence on the issue of the actor's knowledge is relatively great, while the risk of unfair prejudice from the fact-finder's misuse of uncharged misconduct evidence is comparatively small. In those situations, admission of the evidence, along with a limiting instruction, serves the goal of truth-determination that is so central to the trial. In other cases, the risk that the evidence will be used improperly is simply too great to tolerate, and the court should exclude the evidence. This paper examines the circumstances in which courts have grappled with the admissibility of other misconduct evidence to prove knowledge, identifies cases in which the evidence should be admitted as well as those in which it should be excluded, and critiques the courts' tendency to admit the evidence considerably more freely than is justified.

Abstract:
In public and private affairs alike, it is frequently important, and sometimes essential, to determine whether a person knew a certain fact at a particular time. During the Watergate scandal, the key question was what President Nixon knew and when he came into possession of that knowledge. Knowledge was an important issue during the Congressional investigations in to the Iran-Contra scandal as well. As people attempt to assess blame for the collapse of giant energy company Enron, they are asking the same question. In civil actions for fraud or prosecutions for possession of stolen goods or sale of illegal narcotics, conviction requires proof of knowledge. From the mundane drug case to the huge corporate failure and to matters of the highest national interest, the question of knowledge looms large.

Because a person's state of mind cannot be perceived directly, knowledge must always be proven circumstantially. If the circumstances of the event at issue supply a basis for an inference of the mental state, proof of those circumstances is rarely objectionable. But when proof of a particular mental state on one occasion is supplied by evidence of the same mental state on another occasion, and when that other occasion involved conduct that reflects adversely on the actor's character, the court must consider whether admission of the evidence would violate the rule forbidding guilt by character. Whether the evidence will be admissible depends in the first instance on whether it is relevant on a sufficiently compelling non-character basis. That determination, in turn, implicates a long-standing rule of evidence law that permits evidence of other misconduct to be used as long as its relevance does not depend on a forbidden character inference.

In some situations the probative value of uncharged misconduct evidence on the issue of the actor's knowledge is relatively great, while the risk of unfair prejudice from the fact-finder's misuse of uncharged misconduct evidence is comparatively small. In those situations, admission of the evidence, along with a limiting instruction, serves the goal of truth-determination that is so central to the trial. In other cases, the risk that the evidence will be used improperly is simply too great to tolerate, and the court should exclude the evidence. This paper examines the circumstances in which courts have grappled with the admissibility of other misconduct evidence to prove knowledge, identifies cases in which the evidence should be admitted as well as those in which it should be excluded, and critiques the courts' tendency to admit the evidence considerably more freely than is justified.

Abstract:
Allegations of serious police misconduct in the Los Angeles Police Department's Rampart Division have once again cast a light on the different societies existing side-by-side in America. In some Los Angeles communities, it is virtually inconceivable that police would routinely harass members of certain minority groups and engage in an organized effort to frame people for crimes they did not commit. In other communities, the allegations have been accepted as simply the latest volleys in a long-standing pattern of official oppression.

This essay explores some ways in which the divergent experiences of various groups within the same city affect the groups' perceptions of the world. In particular, the essay focuses on such factors as poverty, race, and exposure to crime as contributing to the development of different world views. As examples of the starkly different views of reality, the essay examines two sensational sets of cases, those surrounding the police beating of Rodney King and the criminal and civil actions against O.J. Simpson. In both cases, different juries reached contrary results. A state jury from a largely white, middle-class suburb far from the inner city acquitted the police officers accused of beating Mr. King, while a federal jury in a downtown courtroom issued guilty verdicts against some of the defendants. In the Simpson matter, a downtown criminal jury issued an acquittal after only a few hours of deliberation, while a civil jury in an affluent suburb held Mr. Simpson liable in a wrongful death action. The essay argues that the inconsistent results in both sets of cases can best be understood as arising from the different world views of the jurors. Inner-city jurors had no difficulty, for example, believing that the police mishandled the Simpson investigation, and might even have planted evidence against him. The civil jury, on the other hand, clearly found such possibilities preposterous.

The criminal justice system has yet to come to terms with the simultaneous existence of different sets of perceptions about the world, and there is no obvious solution to the problems this creates. But to maintain public respect for the criminal justice system, we must begin to assess the damage done by huge disparities in wealth and opportunity in America. We should not strive for homogeneity, but we must recognize that as long as such wide disparities exist, we will remain a society characterized more by conflict than by cooperation.

Abstract:
A fundamental principle of evidence law is that an accused is to be tried for what she did, not for who she is. This principle is effectuated by the general rule excluding character evidence offered to prove "action in conformity" with the person's character. The principle, however, is narrow. The same evidence that is inadmissible when offered to prove character may be admitted if it is also relevant on a non-character basis. Because this route to admissibility is open, evidence of a person's other crimes or wrongs-uncharged misconduct evidence-inadmissible on a character basis, is often admitted because of its relevance on an alternative ground.

One common way in which the prosecution uses uncharged misconduct evidence is to prove "motive." Though not an essential element in itself, motive is often part of a chain of inferences leading to the identity of the person who committed the crime or to the required state of mind of the perpetrator. The theory supporting admissibility of uncharged misconduct evidence to prove motive is that motive is different from character, and that admissibility on that basis therefore does not violate the ban on trial by character.

This paper explores the use of uncharged misconduct evidence to prove motive. A key problem addressed is whether there is, in fact, a difference between "character" and "motive," and whether that difference, if any, is sufficiently meaningful to justify courts in admitting the evidence. Of particular interest is whether a drug addict's propensity to obtain drugs, and thus her motive to do so, is a legitimate non-character theory that justifies proof of her drug addiction or use, evidence that would be inadmissible if offered on a pure character-based propensity theory. The paper concludes that the difference between character and motive is sometimes significant, and sometimes too subtle to justify admission of the uncharged misconduct evidence.