evidence-summary

 

Chapter 9

                              RELEVANCY & ITS COUNTERPARTS: FRE 401-03

 

§ 9.01  Overview of Relevancy Rules [105]

 

Relevancy is the most pervasive concept in evidence law.  It is the threshold issue for all evidence.  If the evidence is not relevant, it is excluded.

 

Federal Rule 401 defines relevant evidence (probative value).  The rule must be read in conjunction with Rules 402 and 403.  Rule 402 makes relevant evidence admissible in the absence of a rule of exclusion, and Rule 403 specifies the circumstances under which a trial court is permitted to exclude relevant evidence.

 

Special relevance rules.   In some situations an issue recurs so frequently that the courts  developed categorical rules.  For instance, character evidence is generally prohibited, although there are important exceptions.  Rules 404, 405, 412-15 deal explicitly with character.  Similarly, evidence of liability insurance is generally inadmissible; Rule 411 covers that issue.

 

Ancillary rules based on policy.  Rules 407-410 are relevance rules of a different kind.  They  involve the exclusion of relevant evidence based on external policy reasons – i.e., external to the truth-seeking function of the trial.  For example, subsequent remedial measures (Rule 407) are excluded in order to encourage people to make repairs after accidents.

 

§ 9.02  Consequential (“material”) Facts Defined [106-07]

 

Rule 401 embraces two concepts: relevancy and materiality.  To be admissible, evidence must be both relevant and material.  However, instead of the term “material fact,” Rule 401 uses the phrase “fact that is of consequence to the determination of the action,” which can be shortened to consequential fact.  “Relevancy” describes the relationship between an item of evidence and the proposition it is offered to prove.  In contrast, “materiality” describes the relationship between that proposition and the issues in the case – i.e., the consequential or material facts.

 

With the exception of the credibility of witnesses, the “consequential facts” in a particular case are a matter of substantive law – (1) the elements of the charged crime, (2) the elements of a cause of action, (3) the elements of an affirmative defense, and (4) damages in civil cases.

 

§ 9.03  “Relevancy” Defined [108-14]

 

Rule 401 defines “relevant evidence” as evidence having any tendency to make the existence of a material or consequential fact “more probable or less probable than it would be without the evidence.”  Rule 401's standard does not require that the evidence make a consequential (material) fact “more probable than not” (preponderance of evidence), but only that the material fact be more or less probable with the evidence than without the evidence.  

 

            [A]       Admissibility vs. Sufficiency

 

There is a difference between relevancy (admissibility) and sufficiency.  Although the evidence as a whole must be sufficient to satisfy a party’s burden of production and thus send an issue to the trier of fact, each item of evidence need only advance the inquiry.

 

            [B]       Basis for Relevancy Determination

 

In determining relevancy, the trial judge must rely on logic as informed by experience or science.

 

            [C]       Direct & Circumstantial Evidence

 

Problems of relevancy typically involve circumstantial rather than direct evidence.  The distinction turns on the manner in which an item of evidence relates to the material issues in the case.  Circumstantial evidence requires a further inference to reach the proposition that the evidence is offered to prove.  Direct evidence is not necessarily better than circumstantial evidence.

 

            [D]       “Inference upon Inference” Rule

 

Some cases state that an inference cannot be stacked upon another inference.  This rule makes no sense; reasoning requires inferences upon inferences.

 

            [E]       “Background” Evidence

 

All evidence need not involve a disputed issue.  The federal drafters specifically approved of the admission of “background” evidence.  As examples, the drafters cited charts, photographs, views of real estate, and murder weapons.

 

§ 9.04  Admissibility of Relevant Evidence: FRE 402 [114-17]

 

Rule 402 is the general provision governing the admissibility of evidence:  relevant evidence is admissible, in the absence of a rule of exclusion, and irrelevant evidence is inadmissible.  For present purposes, the most important part of Rule 402 is the phrase “by these rules.”  This language allows relevant evidence to be excluded by operation of some other rule of evidence.  A number of exclusionary rules are found elsewhere in the Rules of Evidence.  Rule 403 is an illustration.  Examples in other Articles include rules on privilege, competency, firsthand knowledge, hearsay, authentication, and best evidence.  In sum, evidence may meet the relevancy standard of Rule 401 but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision of the Rules of Evidence.

Relevant evidence may also be excluded due to the Constitution, federal statutes, or the Civil and Criminal Rules of Procedure.

 

§ 9.05  Rule 403 “Balancing”

 

Rule 403 is the most important rule in evidence law because every item of evidence raises a Rule 403 problem – at least in theory.  It confers no authority to admit irrelevant evidence; Rule 402 mandates the exclusion of irrelevant evidence.

 

            [A]       Estimating Probative Value

 

The application of Rule 403 requires a three-step process.  First, the judge must determine the probative value of the proffered evidence.  Second, the court must identify the presence of any of the enumerated dangers (unfair prejudice, confusion of issues, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence).  Finally, the court must balance the probative value of the evidence; exclusion is discretionary.  The word “substantially” is significant; it makes Rule 403 biased in favor of admissibility.

 

            [B]       Rue 403 “Dangers”

 

Unfair prejudice.  Rule 403 requires exclusion only in the case of unfair prejudice.  Most evidence introduced by one party is “prejudicial” to the other side in the sense that it damages that party’s position at trial.  This is not the concern of Rule 403.  Otherwise, the most probative evidence (e.g., a confession) would be excluded as the most “prejudicial.”  In other words, there is a difference between being unfavorable and being unfairly prejudicial.

 

Other dangers include confusion of issues and misleading the jury.

 

            [C]       Rule 403 “Considerations”

 

Rule 403 permits the trial court to exclude evidence if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  In contrast to the “dangers” enumerated in Rule 403, these factors are not intended to protect the integrity of the factfinding process.  Instead, they are designed to conserve judicial resources.

 

            [D]       Probative Value vs. Dangers & Considerations

 

Although not explicitly stated in Rule 403, the judge should consider (1) the effect of cautionary jury instructions, (2) the availability of alternative proof, and (3) the possibility of stipulations to reduce unfair prejudice in making the balancing determination.  See Old Chief v. United States, 519 U.S. 172 (1997)[nlcitz].

 

            [E]       Appellate Review

 

Courts of appeals employ an abuse-of-discretion rule in reviewing a trial court’s Rule 403 decisions.

 

§ 9.06  Similar Happenings; Other Accidents [125-27]

 

Frequently, similar events are offered in evidence.  This usually presents a problem of circumstantial proof, and the issue becomes how probative are incidents that may differ as to parties, times, places, or circumstances from the event involved in the litigation.  Rules 401 and 403 govern in this context, unless the evidence involves character.  The test is often stated as whether there is substantial similarity between the other happening and the present litigation.  Nevertheless, the issue involves a classic Rule 403 analysis.

 

Notice & dangerous conditions.  Prior occurrences are sometimes admissible to show notice or a dangerous condition.  Additional examples include other claims, misrepresentations, contracts, and business transactions, as well as sales of similar property as evidence of value.

 

Absence of other happenings.  The lack of other accidents (“good” safety history) may be admissible to show the absence of a dangerous condition.  Showing probative value, however, is far more difficult here.

 

§ 9.07  Adverse Inferences  [127-30]

 

In some cases an adverse inference can be drawn from a party’s conduct.  This is sometimes characterized as an “implied admission.”

 

            [A]       Admissions by Conduct – flight, alias, etc.

 

Conduct of a party, such as intimidating witnesses, may be used circumstantially to draw an adverse inference.  Other examples include evidence of false statements, escape, offers to bribe witnesses, refusal to provide handwriting exemplars, and use of an alias.

 

            [B]       Destruction of Evidence (spoliation)

 

Spoliation involves the destruction of evidence.  It is a type of circumstantial evidence, an implicit admission of the weakness of a party’s case.  Documents destroyed in good faith pursuant to a valid record retention policy should not be subject to this inference.

 

            [C]       Failure to Produce Evidence

 

Sometimes a party’s failure to produce evidence may be used to draw an adverse inference.   Perhaps the most familiar instance is an accused’s failure to testify, which is prohibited on constitutional, not evidentiary, grounds.  See Griffin v. California, 380 U.S. 609, 614 (1965) (accused’s failure to testify cannot be the subject of comment by the court or prosecutor).

 

            [D]       “Missing Witness” Rule 

 

A party’s failure to call a presumably favorable witness may give rise to an adverse inference.  The inference is often troublesome, especially in criminal cases.  The rule applies only when one party has superior “access” to a witness, and this is often not clear cut.

 

§ 9.09  Out-of-court Experiments  [130-31]

 

Admissibility depends on whether the experiment was conducted under substantially similar circumstances as those involved in the case.  Rule 403 governs.  Courts often distinguish between experiments offered as a reconstruction of the accident and those that merely illustrate general scientific principles.  The former generally must be conducted under circumstances closer to the conditions existing at the time of the event that is the subject of the litigation.