The two most basic rules in modern evidence law are that all irrelevant evidence should be excluded and all relevant evidence should be admitted. In general these two rules are simple, but the bulk of evidence law stems from the exceptions that have been created over our shared legal history to the rule that all relevant evidence should be admitted.

We have chosen to control what gets introduced as evidence in a court of law in order to avoid the waste of time and resources, undue advantage or disadvantage to one side or another, and to avoid the sense of impropriety or imbalance in our justice system. Relevancy is the primary sifting tool we use to determine whether or not a piece of information should be brought into the courtroom during a case.

Relevancy is not a characteristic of a piece of evidence, in other words, you will never be able to say “This type of evidence is always relevant.” Relevancy is a characteristic of any given piece of evidence that depends upon the relationship between that piece of evidence and a matter to be proved in that particular case. Further, relevancy analysis is the first step in evidentiary analysis, but it is not the last step. There are many other considerations that must be made and requirements that must be met before a piece of evidence may be admitted.

FRE 401 defines “Relevant evidence” as “any fact having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

There are two important elements to FRE 401:

  1. The evidence must be directed at some fact that is important to the issues in the case. (Fact of consequence)
  2. The evidence must make the existence of that fact of consequence more or less probable.

In order to analyze the issue of relevance for a particular piece of evidence you have to first understand the purpose for which the evidence is being offered. Why does the proponent of the evidence (the person trying to get it in) want the fact finder (the judge or jury) to hear/see that fact?

The spirit of the Federal Rules of Evidence can be summed up into three “r’s”.
Relevance, Reliability, and Rightness.

The analysis you should conduct when viewing a potential piece of evidence is as follows:
Is the evidence relevant for the offered purpose? If not, your inquiry ends here. If it is relevant;
Is the evidence reliable for the offered purpose? IF no, even though it is relevant it should not be admitted. If yes;
Is it right to allow the fact finder to receive the evidence for the offered purpose? Even if the evidence is relevant and reliable, there may be good reasons for keeping it out, including constitutional structures (Were Miranda warning issued?), matters of social policy (Insurance and settlements not allowed to show liability because of social policy encouraging insurance and settlements), and considerations of unfair prejudice prejudice and courtroom efficiency.

Relevant evidence need not, on it’s own, be capable of proving the point it is offered in support of. It need only be a link in a chain that ultimately proves or disproves a fact material to the case at hand. Therefore relevance analysis is often the analysis of a chain of references. For example: Defendant is charged with murdering his wife.

The fact that husband had a gambling problem could be relevant. The chain of inference could read: Husband has money troubles –> Wife has life insurance policy –> Husband is beneficiary –> Husband killed wife.

The fact that husband had a gambling problem alone isn’t enough to support an inference of murder, but as a link in the chain of evidence the information makes it more likely that he did, thereby making it relevant.

Evidence must be rationally relevant however. If someone sued a police officer for brutality it wouldn’t be relevant for the Plaintiff’s attorney to ask the Officer if he is married. His marital status has nothing to do with evaluating his conduct as a police officer. In other words, knowing that the plaintiff is married does not help the trier of fact decide whether the officer used to much force against the Plaintiff so the rules of evidence keep that information out of the trial.

Federal Rule of Evidence 403 deals with the balance between probative evidence and prejudicial evidence. In a manner of speaking, all evidence introduced at a trial is prejudicial, as each piece of evidence is being offered to prove or disprove a fact that favors one side over the other. However, the Court has to weigh each piece of evidence to determine if that evidence has more probative value than prejudicial effect. In other words, is this piece of evidence more useful to ascertaining the truth in this case than it is prejudicial to the side opposing it? If the evidence is highly probative and highly prejudicial the Court will often see if there is another way to get that information into the trial without using the prejudicial evidence.

FRE 403 acknowledges that jurors and judges are people and they carry their prejudices into the courtroom with them, regardless of how hard they work to keep them out. Therefore some pieces of relevant evidence will be kept out because they could cause the finder of fact to form negative impressions on the defendant or plaintiff, and then the risk would exist that the fact finder would make their decision based upon those negative inferences, rather than the evidence.

For example, the fact that the defendant was a Satan worshipper is likely to be more prejudicial than it is probative. FRE 403 does not authorize the exclusion of prejudicial evidence unless that evidence in unfairly prejudicial. Prejudice caused by the potential of the evidence to inflame the jury fits that description.

The Federal Rules of Evidence place a great deal of discretion with the trial judge, and it is important to note that FRE 403 does not demand the exclusion of prejudicial evidence, but instead says the evidence “may be excluded”. Occasionally judges are reversed for abusing their discretion under 403, but it is unusual. It is more common to find cases where the appellate court upholds the trial court’s discretion, and their exclusion.

FRE 403 also allows for the exclusion of relevant evidence in the interests of efficiency. Evidence can be excluded under this rule when it’s admission would present an undue waste of time, cause delay, or is needlessly cumulative or repetitive.


Sources for this article include:

Evidence, Examples and Explanations, 7th Edition. Arthur Best

Evidence, Cases, Commentary, and Problems. David Skanlsky

Prof. Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law

The Federal Rules of Evidence.

Expert Commentary from the National Institute for Trial Advocacy, 2011.


About Savvy Spoonie

I am an artist, writer, jeweler, and a Spoonie. Before becoming a Spoonie I was a very busy high achieving attorney and advocate bent on saving the world. Now I'm struggle to redefine my life to fit within my reduced energy level. Some days are better than others. I have fibromyalgia, trigeminal neuralgia, and chronic daily migraine.
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