Intro to the Federal Rules of Evidence - 3

II. RELEVANCE (ART. IV)

The underlying policy:
Knowledge is power. The way to find truth is to present the jury with all the evidence that bears on the issue to be decided, except when there is good reason to do otherwise.

A. DEFINITION OF RELEVANCY
1. FRE 401
Evidence having any tendency to make the existence of a consequential fact more probable or less probable than it would be without the evidence.

Relevance is a relational concept meaning only in context. Relevance is determined by the issues raised by the parties, the other evidence introduced, and the applicable substantive law. A determination of relevancy may depend on the content of pleadings, indictments, pretrial orders, and pleas, as well as the testimony of other witnesses and the opening statements and arguments of counsel (Evidence, p.225)
In ruling upon relevancy, the court must draw on its own experience, the court must draw on its own experience, knowledge, and common sense in assessing whether a logical relationship exists between proffered evidence and the fact to be proven. (id., pp.225-6)

2. Of a consequential fact
a. Substantive evidence
i) relating to an element of a cause of action or affirmation defense
ii) generally if stipulations made, irrelevant.
iii) generally must related to time, event, or person in controversy; if not, not probative.
b. Evidence of impeachment/rehab of witnesses
c. Expert testimony & demonstrative evidence ; “assist-the-jury” – clarifying other admissible evidence.

“But the fact to which the evidence is directed need not be in dispute…. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category” (ACN).

3. Probative Value
“any tendency” – if more than 0 (= irrelevant), the evidence is relevant.

The judge normally does not make the assessment of probative value by applying cut-and-dried legal principles. Rather, he applies his own experience, general knowledge, and understanding of human conduct and motivation.

a. Chain of inference
In assessing probative value, the judge must determine what proposition the evidence is being offered to establish, and he must then follow the chain of inference between the evidence and that proposition. Obviously, the more steps there are in the chain of inference, the less probative value the evidence has.

Example: suppose the contested issue is whether D is the person who killed V, and the evidence if a love letter from D to W, V’s wife. The chain of inference would be something like this: (1) a man who writes a love letter to a woman probably loves her (“probably” in the sense that he is more likely to love her than a man who does not write a love letter); (2) a man who loves a man probably wants her for himself alone; (3) a man who wants a woman for himself alone probably would like to get rid of her husband; (4) a man who wants to get rid of the husband of the woman he loves probably plans to do so; (5) a man who plans to get rid of someone probably does o, by killing him.

b. “A brick of the wall of evidence.”

Because the “any tendency” standard is so low, objections on this ground are rarely sustained.

Example:
D, a black man, is charged with robbing a bank. The prosecution offers a surveillance tape of the robbery, which shows the robber is black but which does not show enough detail to demonstrate that the robber is or is not D. The tape will be relevant, and admissible, because it tends to show that the robber was black, and this fact makes it more likely that the robber is D than would be the case if the tape was not in evidence – it doesn’t matter that the tape is not by itself enough to make it more likely than not that D was the robber.

In point of fact, evidence should rarely be excluded for lack of probative value. On the other hand, evidence is very frequently excluded because its probative value is outweighed by prejudice, tendency to confuse, or other discretionary considerations.

EXAMPLE
Q (PROSECUTOR): Mrs. Higgins, were you at the bank on June 1, one week before the robber?
A; Yes.
Q: Did you see the defendant that day?
DEFENSE LAWYER: Your honor, we object on relevance grounds. May we approach?
JUDGE: Yes. [Lawyers come to the bench.] Prosecution, where’s this testimony going?
PROSECUTOR: The witness will testify that she saw the defendant outside the bank that day, that he was looking at the bank, but never came insider.
JUDGE: What’s that prove?
PROSECUTOR: It shows the defendant was already planning the robbery and casing the bank.
DEFENSE LAWYER: The fact that he’s outside the bank hardly proves he was planning to rob it.
JUDGE: The objection is overruled. The witness may answer.