Table of Contents

Chapter 2. Relevance 1

A. Relevance and Irrelevance 1

B. Probative Value and Prejudice 5

C. Conditional Relevance 11

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 2. Relevance

A. Relevance and Irrelevance

Introduction

• As Thayer used the terms, relevance is determined by logic and experience, not by legal rules. Evidence is relative if rationally probative in any way, so it needs have very little probative force to be relevant. The low threshold for relevance is part of why there are no exceptions for irrelevant evidence.

FRE 401. Test for Relevant Evidence

• Evidence is relevant if:

  • (a) it has any tendency to make a fact more or less probable than without evidence; and

  • (b) the fact is of consequence in determining the action.

FRE 402. General Admissibility of Relevant Evidence

• Relevant evidence is admissible unless any of the following provides otherwise: US Constitution, federal statute, FRE, or other rules prescribed by Supreme Court. Irrelevant evidence is not admissible.

Advisory Committee Note to FRE 401

• Relevance is determined by processes of legal reasoning. Relevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item and a matter provable in the case.

• The fact to be proven may be ultimate, intermediate, or evidentiary, rather than only “material.” The fact need not be in dispute; evidence offered to prove a point already conceded by the opponent should be excluded on the basis of such considerations as waste of time and undue prejudice (FRE 403). A rule limiting admissibility to controversial points (such as CEC §210) could exclude useful evidence or raise endless questions over admissibility.

Advisory Committee Note to FRE 402

• Admissibility of all relevant evidence, with some exceptions, and inadmissibility of all relevant evidence is the foundation of the structure of admission and exclusion.

Knapp v. State, 79 N.E. 1076 (Ind. 1907)

Procedural posture:

• D appeals conviction for murder, challenging denial of motion for new trial.

Facts:

• D, as witness on own behalf, offered testimony tending to show self-defense. Testified he heard deceased had clubbed and killed an old man.

• On cross-examination, P asked D who told him of old man, and D said he couldn’t say.

• On rebuttal, P was allowed, over objection and exception of D, to prove by physician’s testimony the old man died of senility and alcoholism and was not clubbed.

• D argues it was error to admit physician’s testimony, since the question was whether D had in fact heard the story, not the story’s truth or falsity.

Opinion (Gillet, J):

• The testimony was admissible.

  • While there must be an open and visible connection between the fact under inquiry and the evidence, the only a logical connection is required, since requiring an actual connection would exclude all presumptive evidence.

  • Showing D’s claims were factually baseless showed somewhere between the fact and the testimony was a liar, and given people tend to tell the truth and given D’s inability to point to source, has a tendency to make it less probable D’s testimony was true (i.e., less probably he really heard the man was clubbed).

• Affirmed.

United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990)

History:

• D was a US Customs officer found guilty of kidnapping, robbing and murdering V when V attempted to carry $700k into the US.

Facts:

• After presenting evidence a gunshot killed V, P introduced evidence showing D owned gun, D asked friend to bring gun to have barrel replaced, and gunsmith saw scratches on barrel possibly caused by attempted removal, and gunsmith repaired but did not replace barrel.

• D argues D had to own a gun as customs officer, and so evidence of ownership and about barrel was irrelevant and prejudicial.

Opinion (Breyer, J):

• That evidence is not irrelevant.

  • Under FRE 401, relevant is any evidence having tendency to make existence of any fact of consequence more or less probable.

  • The fact D owned a gun makes guilt somewhat more probable than if he did not. Having a good reason for owning gun, consistent with innocence, makes evidence less probative, not irrelevant.

  • Regardless, P had to show D owned gun in order to show D tried to have barrel replaced. Effort to replace suggests effort to cover-up, which in turn suggests consciousness of guilt. Given this set of logical connections, replacement effort makes guilt more probable, and the evidence is consequently relevant.

• D points out that chain of inferences is far weaker than if P had introduced gun itself into evidence.

  • But P is free to introduce weak, as well as strong, evidence. No one claimed this particular piece of evidence proved guilt; it was merely one among many.

• Affirmed in part and reversed in part (on other grounds).

State v. Larson, 843 P.2d 777 (Mont. 1992)

History:

• D appeals from conviction for negligent endangerment.

• D was riding with five-year-old on borrowed horse he knew to be hot-blooded. Horse reared and crushed and killed five-year-old. Cops took blood sample from D three hours later.

• Witness Kurtz, a forensic scientist, measured D’s blood alcohol content at .17g/100ml, and estimated BAC of .20-.27 at time of accident.

Facts:

• At trial, court allowed Kurtz to compare D’s BAC with level determined to impair ability to drive a vehicle, which is .08.

• At trial, P claimed D made mistakes in judgment due to alcohol, reminded jury BAC was three times the limit for driving, and claimed person too drunk to drive is too drunk to ride hot-blooded horse with a five-year-old.

• D argues BAC level impairing ability to drive is irrelevant to D’s conduct on a high-blooded young horse.

Opinion (McDonough, J):

• Court did not abuse discretion in admitting the comparison.

  • D’s BAC on the day of the accident is relevant to show D’s reactions and judgment were impaired.

  • Comparison of D’s BAC with level determined to impair ability to drive vehicle is also relevant, since it aids jury in evaluating D’s level of intoxication using their experience and logic. Its probative value outweighs any prejudice to defendant.

• Affirmed.

Morgan, Basic Problems of Evidence

• Demonstrates a chain of inferences and unarticulated premises leading from evidence A to conclusion F.

  • Value of item A as probative of F varies with degree of probability of existence of each presumed fact and inversely with the number of inferences between A and F.

  • Distinction between A’s relevance as evidence of F, and A’s weight as evidence of F.

• Other items may be offered, each of which with a series of inferences leading to F, which will strengthen the foundation for the ultimate inference.

  • No matter how numerous the items or short the series of inferences, they will never produce certainty. Still, for the existence of ultimate fact to be a question for trier of fact, the totality of such items must justify reasonable persons in concluding the ultimate fact is more probable than not.

Lilly, An Introduction to the Law of Evidence

• Probative force is always limited by the weakest link in inferential chain.

Class notes:

Evidence

• Direct evidence is where someone says they saw it, whereas circumstantial evidence allows one to infer the fact therefrom. Circumstantial evidence can be stronger than direct evidence: circumstantial evidence has no incentive to lie, whereas witnesses with direct evidence may.

• Physical evidence comes in to the trial record through a witness, who identifies and gives context.

• Because American cases are party-driven, some evidence which may be objectionable may come in because a party fails to object, either out of interest or mistake. Parties may agree beforehand about what they think should come in or not.

• Sources of evidence law:

  • Statutory

  • Constitutional

    • Confrontation clause: new development, significantly changed evidence

    • Due process clause: narrow path, hard to use to limit evidence

• Interpreting Rules of Evidence:

  • Text of the rule: context, purpose

  • Legislative history

    • Congressional sources: committee reports, debate

    • Advisory Committee

  • Common law and treatises: rules often codified or changed common law, so CL remains important

• Who decides disputes over evidence?

  • Parties: decide what to put forth, when to object

  • Trial judge

  • Appellate court (rarely, most action is in trial court)

Relevance

• A piece of evidence for which there is an innocent explanation is not irrelevant, just less weighty.

• Hearsay may be relevant but inadmissible.

• Relevance can depend on the purpose for which evidence is introduced, on whether it is a criminal or civil case, and (for character evidence) on who introduces it.

• The big question for relevance is: Prejudicial or Probative?

• Typically, in framing the case, prosecutors will say “This is simple, look narrowly at what the defendant did this day at this time, etc.”, whereas defense will say “This case is not simple; in order to understand that narrow thing you have to understand the whole other thing, a bigger picture.”

• FRE 401: Relevance is any tendency to make a fact more or less probable, where the fact is of consequence in determining the action.

  • Relevance is not the same as sufficiency or proof.

  • “Of consequence” stipulation means that relevance is contextual. The proposed evidence must relate to a fact or element in the case. You must think about how it advances the law.

• FRE 402: Relevant evidence is admissible, except when it isn’t.

Check Chapter 6 for mechanisms of trial (not covered in class).

B. Probative Value and Prejudice

FRE 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

• If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

• The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Advisory Committee note to FRE 403

• Case law recognizes some circumstances call for excluding evidence of unquestioned relevance, including risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time. In deciding whether to exclude, consider probable effectiveness of a limiting instruction.

  • “Unfair prejudice” means undue tendency to suggest decision on an improper basis, commonly an emotional one.

  • Unfair surprise is not a ground for exclusion under FRE 403, unlike some views of the common law.

Swift, One Hundred Years of Evidence Law Reform: Thayer’s Triumph

• Benefits of trial judge discretion: judicial economy, individualized and flexible, promoting truth-seeking function by allowing room for TJ’s awareness of complexity and uniqueness of particular case.

• Costs of trial judge discretion: arbitrary and unfair, unpredictable, inconsistent outcomes dependent on personality of judge, loss of confidence in judicial system, trial judges incapable of making subtle judgments FRE 403 requires.

United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997)

Facts:

• D (Manuel Antonio Noriega) was indicted by USA federal grand jury on drug charges, alleging he used position as commander of Panamanian Defense Forces to help Colombians smuggle cocaine through Panama into the USA. After lengthy pre-trial and trial, D was found guilty of 8 out of 10 counts on indictment, and sentenced to 40 years.

• Before trial, D gave intent to use classified information about intelligence work for USA to rebut P’s assertion that he had unexplained wealth.

  • P objected to disclosure of purposes for which USA paid D.

  • P offered to stipulate D received $320k, but D insisted actual amount was $10m and he should be allowed to disclose tasks performed.

• District court ruled information about content of discrete operations was irrelevant to defense or, alternatively, the tendency of such evidence to confuse the issues substantially outweighed any probative value it might have had.

  • Ruling left D free to present evidence of fact, amounts, time, source and method of money allegedly received from USA. D declined to submit evidence because, he now contends, it would not have appeared credible to jury absent excluded details regarding actual services.

Opinion (Kravitch, J):

• Information potentially had some probative value: had D testified he received $10m and P rebutted with evidence of $320k, evidence of services performed may have helped jury decide which is more credible.

  • So, district court may have overstated the case when it declared evidence of the services wholly irrelevant.

• Potential probative value was relatively marginal, since purposes of payment does not aid significantly in determining fact and amount of such payments. More importantly, such evidence would have shifted unduly the focus of trial from allegations of drug trafficking to matters of geo-political intrigue.

  • So, cannot conclude district court abused its discretion when it determined the probative value of proffered evidence was outweighed substantially by confusion of issues admission would have caused.

• Convictions affirmed; denial of motion for new trial affirmed.

United States v. Flitcraft, 803 F.2d 184 (5th Cir. 1986)

Facts:

• Ds (husband and wife) appeal convictions for failing to file tax returns and filing false withholding exemption certificates.

  • At trial, Ds admitted their income was high enough to make them liable for tax and they signed false withholding forms and failed to file returns.

  • Only contested P’s contention acts were willful.

  • D testified he read cases and article convincing him his wages were not income, merely exchange of money for time.

• Trial judge refused to allow D to introduce legal materials upon which D claimed to rely, but did allow D to testify about them orally.

• Ds argue jury would have been more likely to credit sincerity of D’s belief they were not subject to filing a return if jury had seen documents.

Opinion (Johnson, J):

• FRE 403 provides evidence, though relevant, may be excluded for enumerated reasons. A district court’s ruling under FRE 403 will not be disturbed except for abuse of discretion. [Even if objection preserved? Why so strict? A: abuse of discretion is less strict than plain error]

• Documents relied upon by D would have been cumulative because D testified to documents relied upon and their contents.

  • Introduction of documents would have had little further probative value.

• Documents also presented danger of confusing jury by suggesting law is unsettled and jury should resolve doubtful questions of law.

Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963 (7th Cir. 1983)

Facts:

• P was hit in back and injured by log from forklift, sued D for negligence.

• D, president of Superior Hardwoods, made a home videotape showing forklift unloading logs. Video was not tape of accident or attempt to recreate it.

  • District judge allowed tape to be shown to jury but only with sound turned off.

  • D contends soundtrack proves P should have heard forklift beginning to unload logs.

Opinion (Posner, J):

• Background noise was relevant to defense of contributory negligence.

  • So, no objection in principle to presenting evidence of noise levels.

• To be admissible—at least as a matter of law,...

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