This is an extract of our Evidence Chapter 2 Relevance document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.
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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
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:
o (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)
D appeals conviction for murder, challenging denial of motion for new trial.
D, as witness on own behalf, offered testimony tending to show selfdefense. 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.
o 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.
o 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).
United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990)
D was a US Customs officer found guilty of kidnapping, robbing and murdering V when V attempted to carry $700k into the US.
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.
o Under FRE 401, relevant is any evidence having tendency to make existence of any fact of consequence more or less probable.
o 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.
o 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.
o 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)
D appeals from conviction for negligent endangerment.
D was riding with five-year-old on borrowed horse he knew to be hotblooded. 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.
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.
o D's BAC on the day of the accident is relevant to show D's reactions and judgment were impaired.
o 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.
Morgan, Basic Problems of Evidence
Demonstrates a chain of inferences and unarticulated premises leading from evidence A to conclusion F.
o 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.
o 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.
o 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.
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:
Confrontation clause: new development, significantly changed evidence Due process clause: narrow path, hard to use to limit evidence
Interpreting Rules of Evidence:
o Text of the rule: context, purpose
Congressional sources: committee reports, debate
Common law and treatises: rules often codified or changed common law, so CL remains important
Who decides disputes over evidence?
o Parties: decide what to put forth, when to object
Appellate court (rarely, most action is in trial court)
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.
o Relevance is not the same as sufficiency or proof.
o "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.
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