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:

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...

Buy the full version of these notes or essay plans and more in our Evidence Outlines.