Criminal relevance fundamentals

Determining the relevance of evidence is critical to the functioning of criminal courts. The object of this article and self-study test is to discuss the fundamentals of relevance in criminal cases, including the definition of relevant evidence, the scope of judicial discretion and the need for proper offers of proof. Also covered will be relevance in relation to specific kinds of evidence, including undisputed facts, real and demonstrative evidence, weapons, photographs and videos, third-party culpability, and prior statements and prior conduct of the defendant. (Readers should keep in mind that evidence may be excluded even if relevant, based, e.g., on violations of the Fourth Amendment and public policy exclusions.)

Overview

In order for evidence to be admissible, it must be relevant. (Evidence Code (EC) § 350; People v. Helzer, 15 Cal.5th 622 (2024).) Evidence is relevant if it has a tendency to prove or disprove a disputed fact or proposition considering both (1) materiality (the evidence is offered concerning a matter at issue), and (2) probity (the evidence makes a certain fact somewhat more likely than without the evidence). (See People v. Battle, 11 Cal.5th 749, 799 (2021) [characterizing relevance standard as a "low threshold"]; People v. Bell, 47 Cal.App.5th 153, 181, fn. 23 (2020) [characterizing relevance standard as a "low bar"].)

"Relevant Evidence" is defined as evidence that: (a) is relevant to the credibility of a witness or hearsay declarant; or (b) has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. To be relevant, evidence must be both material and probative. (EC § 210.) Evidence is material if it relates to a fact or proposition in that case that is disputed. (People v. Hardy, 5 Cal.5th 56, 87 (2018); People v. Lopez, 65 Cal.App.5th 484, 504 (2021).)

Typically, a fact in a criminal case is in dispute when raised in an accusatory pleading and the defendant denies a factual allegation or enters a plea of not guilty. (Penal Code [PC] § 1019.) For evidence to be material, the fact sought to be proved does not have to be an ultimate fact in the proceeding. (People v. Thompson, 27 Cal.3d 303, 315 (1980).) Intermediate facts such as motive, opportunity, plan, scheme, design and modus operandi can constitute material facts. (Id. at p. 315, fn. 14; see, e.g., People v. Parker, 13 Cal.5th 1, 53-54 (2022) [single sperm cell taken from banana peel found in same trash bag as the defendant's to-do list describing a number of sexual and other acts performed in connection with victim's murder relevant to intent and planning to sexually assault victim].) Whether evidence is probative is determined by whether it logically, naturally, and by reasonable inference establishes or disproves a material fact. (Thompson, 27 Cal.3d at p. 316.)

Judicial discretion

A trial court has "considerable discretion" in determining the relevance of evidence. (Parker, 13 Cal.5th at p. 53.) However, the court has no discretion to admit irrelevant evidence and a fact not legitimately in dispute must be excluded. (See EC § 350; People v. Alexander, 49 Cal.4th 846, 903-904 (2010); People v. Casillas, 65 Cal.App.5th 135, 147 (2021).)

A court also has great discretion in excluding relevant evidence under EC § 352, when the evidence's "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."

Offers of proof

The right to appeal a court's ruling sustaining an objection to evidence is preserved only if a specific offer of proof is made in the trial court setting forth the "substance [in contrast to facts], purpose, and relevance of the excluded evidence." (EC § 354.) An offer of proof is not necessary where the rulings of the court make it "futile" (i.e., where the court previously ordered certain evidence precluded). (EC § 354(b).)

Relevance of specific kinds of evidence

Undisputed facts

Under EC § 210 and § 350, evidence offered to prove an undisputed fact is irrelevant and inadmissible. The parties in a criminal action can eliminate an issue from controversy by an offer to stipulate to certain facts (e.g., identity of victims or status of their physical condition before and after the alleged crime), thereby prohibiting testimony to prove such facts as irrelevant. However, it is noteworthy that "[o]rdinarily the prosecution 'cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness.'" (People v. Dykes, 46 Cal.4th 731, 785 (2009), citation omitted; see also People v. Salcido, 44 Cal.4th 93, 147 (2008).)

The absence of a dispute on one issue does not preclude the same evidence from being admitted in connection with another issue in contention. (See People v. Heard, 31 Cal.4th 946, 975 (2003).) Moreover, the element of a "disputed fact" does not necessitate it be an ultimate fact in dispute because certain facts can lead to a presumption or inference of an ultimate fact. (See People v. Garcia, 168 Cal.App.4th 261, 289 (2008).)

Real evidence

Real evidence (e.g., physical or tangible evidence) is generally relevant because the object itself is at issue in the case or because it connects the defendant to the commission of the crime. (See People v. Lucero, 41 Cal.App.5th 370, 400, fn. 11 (2019) [defining real evidence]; People v. Wilson, 238 Cal.App.2d 447, 461-463 (1965).) In order to be considered relevant, material objects must be (1) illustrative of and supplemental to the testimony of a witness, or (2) independently relevant as circumstantial evidence (i.e., circumstances surrounding the location, characteristics, or use of the objects). (EC §§ 140, 210.) They also must be authenticated as an accurate representation of what they purport to portray. Establishing proper chain of custody is the responsibility of the party offering the item of evidence (i.e., reasonable certainty that there was no alteration). (See People v. Wallace, 44 Cal.4th 1032, 1061 (2008).)

Demonstrative evidence

Demonstrative evidence is not actually used or related to the crime but is evidence introduced to aid the jury's understanding of the real evidence by replicating the object in some manner. Demonstrative evidence can take a variety of forms such as photographs, charts and experiments. (See, e.g., Helzer, 15 Cal.5th at p. 669 [photographs showing shocking nature of victim's burn injuries]; People v. Steskal, 11 Cal.5th 332, 364 (2021) [at penalty phase in a death penalty trial, a mannequin dressed in the officer's bloody uniform used to complement pathologist's testimony describing location of wounds].)

Weapons

The focus when determining the admissibility of weapons is on the type of weapons found considering (1) consistency with the criminal act, (2) resemblance to the actual weapon used, and (3) whether the weapon is in the defendant's possession. However, evidence of a weapon not used in a crime has no consequential relevancy to the defendant's guilt or innocence (only inferentially that the defendant is the kind of person that possesses deadly weapons). (See People v. Archer, 82 Cal.App.4th 1380, 1392-1393 (2000); but see People v. Cox, 30 Cal.4th 916, 956 (2003) [opining that "when weapons are otherwise relevant to the crime's commission, but are not the actual murder weapon, they may still be admissible"]; e.g., People v. Venegas, 44 Cal.App.5th 32, 40 (2020) [evidence of disassembled assault rifle, although not the murder weapon, relevant because it tended to show defendant was a gang member armed for battle].)

Photographs, films, videotapes, maps and diagrams

These items are commonly relevant as demonstrative evidence as illustrative of the witness's testimony and properly authenticated through the personal knowledge of the witness. However, photographs can also be independently relevant as substantive evidence. (See People v. Sattiewhite, 59 Cal.4th 446, 471 (2014) [autopsy photographs relevant to prove malice].) As a general rule, photographs that show the manner in which a victim was wounded are relevant (in determining malice, intent, premeditation, aggravation, and penalty). (See People v. Cage, 62 Cal.4th 256, 283 (2015); People v. Burgener, 29 Cal.4th 833, 872 (2003).) Gruesome autopsy photographs have been held relevant on the issue of malice as well as to support the testimony of a witness (e.g., a coroner). (See People v. Clair, 2 Cal.4th 629, 660-661 (1992); People v. Garcia, 168 Cal.App.4th 261, 294 (2008).) Photographs of crime scenes are also generally relevant. (People v. Hoyos, 41 Cal.4th 872, 908 (2007).) Photographs of the crime scene and the victim's wounds are also relevant to the penalty determination as evidence of the circumstances of the crime. (See Steskal, 11 Cal.5th at pp. 366-367.) The proffered evidence should undergo EC § 352 analysis by the court as applicable.

Jury views of crime scene

The court's discretion concerning a view of a crime scene will be based on its probative value, potential prejudice, and the convenience of the Court in coordinating and conducting the view. (See People v. Friend, 47 Cal.4th 1, 47 (2009).) A jury view is a form of demonstrative evidence. (See Steskal, 11 Cal.5th at pp. 354-356.) Jury views are governed by PC § 1119.

Reasonable doubt (third party culpability)

Evidence tending to show that someone other than the defendant committed an alleged offense is admissible if a reasonable doubt is raised as to the defendant's guilt, subject to EC § 352. (See People v. Clark, 63 Cal.4th 522, 597-598 (2016); People v. Yeoman, 31 Cal.4th 93, 141-142 (2003).) However, the evidence must connect the third person either directly or circumstantially to the actual commission of the offense (more than a basic showing of motive or opportunity is compulsory). (See People v. Dworak, 11 Cal.5th 881, 895 (2021); People v. Lucas, 60 Cal.4th 153, 280 (2014); e.g., People v. Brady, 50 Cal.4th 547, 558-559 (2010) [calls to a "hotline" were irrelevant in the absence of additional evidence connecting the calls to a third person having a sufficient motive and opportunity to commit the crime because the circumstances did not create a reasonable doubt concerning the defendant's guilt].) "[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning [the defendant's] guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime." (People v. McWhorter, 47 Cal.4th 318, 367 (2009).) Third party culpability evidence will be excluded when the third party's link to a crime is tenuous or speculative. (People v. Bracamontes, 12 Cal.5th 977, 1001 (2022).)

Prior statements and subsequent conduct of the defendant

Generally, a defendant's false statements made at arrest are admissible to show consciousness of guilt (not for truth). (See People v. Hughes, 27 Cal.4th 287, 335 (2002).) Subsequent statements, made at preliminary hearing, may be relevant as well where the inference of guilt originates from the defendant's actions to mislead the police and divert suspicion. (See People v. White, 35 Cal.App.4th 758, 772-773 (1995).) However, in order for the false or misleading statement to create an inference of guilt, it must have been made before trial. (See People v. Cortez, 63 Cal.4th 101, 118 fn. 2 (2016).)

Evidence of a defendant's conduct after commission of a crime tending to show consciousness of guilt is relevant (e.g., suppression of evidence, hiding or fabricating evidence, flight, jail break pending trial, resistance to police during transport, refusal to submit to court authorized test). (E.g., People v. Flinner, 10 Cal.5th 686, 719 (2020) [tampering with witnesses and jury]; Ross v. Superior Court, 77 Cal.App.5th 667, 684 (2022) [suppression or alteration of witness testimony].) By contrast, evidence of certain statements or actions that imply a defendant's consciousness of innocence, such as a decision not to flee a crime scene or to cooperate with a police investigation, is generally inadmissible. (People v. Cowan, 50 Cal.4th 401, 472-473 (2010) [evidence of consciousness of innocence excluded given ambiguous inferences that can be drawn from the conduct and "on the ground that its slight probative value is outweighed by the risk of confusing the issues"].)

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