Admission of Relevant Evidence for Substantive Use - General Principles

Question 1

Reasons Relevance is Important

Answer 1

• Truth-seeking and just determinations
• Efficiency
• Fairness
• Concern about the jury’s decision-making

Question 2

Three Step Analysis for Relevance

Answer 2

1. Is it relevant?
2. If it is relevant, is it categorically excluded due to public policy or reliability concerns?
3. If it is relevant, and if it is not categorically excluded, should the judge exercise discretion to exclude the evidence?

Question 3

FRE 402

General Admissibility of Relevant Evidence

Answer 3

Relevant evidence is admissible unless any of the following provides otherwise:

• The United States Constitution
• A federal statute
• These rules or
• Other rules provided by the Supreme Court

*But judges sometimes allow irrelevant evidence on to provide background

Question 4

FRE 401

Test for Relevant Evidence

Answer 4

Evidence is relevant if

1. It has any tendency to make a fact more or less probable than it would be without the evidence (probative value) and
2. The fact is of consequence to the action (materiality)

Question 5

Materiality

Answer 5

• A fact is consequential only if it helps to prove or disprove an element of a charge, claim or defense
• Since the jury must decide how much weight to give the evidence, facts that bear on the creditability of witnesses are material.

Question 6

Probative Value

Answer 6

• The proffered evidence must logically prove the proposition toward which it is directed by having any tendency to make the material fact more or less true
• This is a low threshold. It does not even require a more-probable-than-not relationship

Question 7

Direct v. Circumstantial Evidence

Answer 7

• Direct evidence presents a straightforward link to the material issues in the case
• Circumstantial evidence requires the fact finder to make inferences
• Direct evidence is not superior to circumstantial evidence. Rather, sometimes circumstantial evidence is more powerful that direct evidence. Ex. DNA v. eye-witness identification.

Question 8

Question for Procedural Issues Related to Relevance

Answer 8

• Who decides whether evidence is relevant?
• What information can be used in determining whether evidence is relevant?
• By what standard is the decision made?
• What are the mechanics of making the decision?

Question 9

Who decides whether evidence is relevant?

FRE 104(a)

In General

Answer 9

The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.

Question 10

What information can be used in determining whether evidence is relevant?

FRE 104(a)

In General

Answer 10

In so deciding, the court is not bound by evidence rules, except those on privilege.

So the judge can use any evidence, even inadmissible evidence, except privilege evidence.

Question 11

By what standard is the Relevance decision made?

Answer 11

• The judge uses the preponderance of evidence standard in deciding relevance, meaning the evidence must be more likely than not relevant.
• This is even true in criminal cases where the overall standard is beyond a reasonable doubt.

Question 12

What are the mechanics of making the relevance decision?

Answer 12

In a few, limited situations, the FRE require the judge to make the relevance decisions outside the hearing of the jury. Otherwise, the matter is up to the judge’s discretion

Question 13

FRE 104(a)

In General

Answer 13

The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rule, except privileged evidence.

Question 14

FRE 104(c)

Conducting a Hearing So That the Jury Cannot Hear It

Answer 14

The court must conduct any hearing on a preliminary question so that the jury cannot hear it if

1. The hearing involves the admissibility of a confession
2. The defendant in a criminal case is a witness and so requests or
3. Justice so requires