The Legacy of Old Chief and the Definition of Relevant Evidence: Implications for Uncharged Misconduct Evidence

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.