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.

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Introduction to Evidence.

Evidence is defined as “the means by which any matter of fact, the truth of which is submitted to investigation, may be established or disproved. That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other.”  Ballantine’s Law Dictionary, 2010.

The law of evidence is the set of rules which govern what testimony (oral or written statements), exhibits (physical documents, physical objects, video, etc.) and other material is allowed to be offered in a court or administrative proceeding in order to prove the elements of a claim, crime, or cause of action.

The rules of evidence operate together to keep any one person or entity from having full control of the courtroom. Attorneys find evidence as they develop their case and then present that evidence to the court, arguing which rules allows it to be presented or objecting when they believe a rule prohibits its introduction. Judges decide whether or not the rules allow or prohibit that piece of evidence, and the jury decides how much value that piece of evidence should have. As such, when dealing with evidence, court decisions rest in the hands of all parties to the case, instead of just one.

The current Federal Rules of Evidence evolved over time through common law precedent. In the early twentieth century James Bradley Thayer, an evidence professor at Harvard, began to organize the common law rules. His work was continued by Thayer’s student John Henry Wigmore who published a gigantic treatise on the law of evidence that is widely considered to be the most influential treatise on American jurisprudence ever written.

Congress adopted the first Federal Rules of Evidence in July of 1975 and codified the previous precedential rules in the process.  The Federal Rules of Evidence are mandatory in the federal courts and before federal magistrate judges and federal bankruptcy judges. The rules are also used as guidance in other federal proceedings such as administrative hearings, but are not mandatory. The States have used the Federal Rules of Evidence as a template for their own rules of evidence, so you will see a lot of similarities in the various jurisdiction. Beware, however, and do not assume all states adopted all the federal rules. There are subtle differences everywhere you look.

The primary focus of our Rules of Evidence is to determine what is the most reliable information we can present to the court to support our client’s side of the argument. When you are faced with these seemingly endless rules it is important to remember that they are basically a consensus concerning the types of statements, documents, physical objects, and other material we as a society consider to be the most reliable ways to find out the truth.

For example, in order to offer scientific information as evidence it must be information gained by a process that is recognized by a fair number of other scientists as reliable. It cannot be an unpopular fringe science that other scientists don’t believe is valid. We as a society have determined that a method supported by the majority of scientists is more reliable for discerning truth then a process or method that is supported by very few scientists.

Each of the Rules of Evidence deals with the validity and reliability of the information we choose to use in our courtroom to decide which side’s story is more believable.

So in plain English, what is Evidence?

There are two basic concepts to evidence, logical relevancy and legal relevancy. Logically relevant evidence is any fact that helps prove or disprove a fact “at issue” in a particular case. In other words, evidence is any fact that has a tendency to make the existence of any fact at issue in that particular case more probable or less probable than it would be without the evidence. Legally relevant evidence has to be logically relevant but it must also be more useful than it is prejudicial. We will discuss legal relevancy in more detail later, but an example would be the difference between producing the severed head of a murder victim, or the death certificate of a murder victim. Both items prove the person is dead, but one of them is so shocking that it is hard to think critically about the case once it has been introduced. Therefore the severed head, though logically able to prove the death of the victim, is not legally relevant.

There are four basic types of evidence:

1. Witness testimony (Sense evidence, Eye, Ear, Smell, Taste, Feel)

  • Layperson testimony– Jane was out on her daily run past the 7-11 when she heard a gunshot. She dove to the ground, looked up, and saw a man in a red jacket running away from the store with a plastic bag in his hand.
  • Expert Testimony — Testimony based on scientific, technical, or other specialized knowledge from a qualified as an expert.

2. Exhibits — Tangible items offered during trial.

  • “real evidence” — i.e. the smoking gun, the bloody glove, the severed head.
  • Demonstrative exhibits — a sketch of the intersection at the time of a car crash, photographs of the damage done to the car, etc.
  • Documentary exhibits —  business records, diaries, letters, etc.

3. Stipulations — Facts both parties agree to before the trial starts in order to speed up the process and lower the cost of litigation. (For example, a Defense attorney for a drunk driver may stipulate to the fact the driver was drinking if her defense centered on mistaken identity. (As in, he wasn’t driving so it doesn’t matter if he was drinking. )

4. Judicial Notice — The court will recognize notorious facts that are subject to common knowledge within the community and manifest facts that are capable of positive verification through readily accessible and undoubtedly accurate sources without requiring formal presentation of evidence.

  • How much rain fell in Colorado in 2009 is a manifest fact as it can be readily verified by looking at an Almanac.
  • The human gestation period of 280 days is a notorious fact as it is commonly known within the community.

There is also Direct versus Circumstantial Evidence.

Direct evidence includes eye witness testimony, confessions, admission of liability of the defendant. Example: “I saw the man shoot the woman with the gun outside the convenience store!” says the Witness

Circumstantial evidence is indirect and proves facts by implication or inference. Example: Finding your dog in your kitchen with a torn up empty package of hot dogs. Gee. Where did the hot dogs go?

Both Direct and Circumstantial evidence are admissible in court if the evidence in question is able to pass the tests of the other rules of evidence.

Much of the evidence used at trial is gathered through Discovery, the process during which each side asks the other questions and requests information from the other. Once it’s gathered, there are a variety of ways to attempt to exclude it from trial, the most notable of which is objection.

In order to understand how evidence works you have to understand all the rules and the manner in which they co-exist, from the rules designed to exclude prejudicial evidence to the exceptions designed to include it, all the rules work together. Additionally, the area of law in which the trial is founded may have an effect on the admissibility of evidence, as the elements of the argued claim are essential to the determination of relevancy. However, at its core the Rules of Evidence remain an eloquent codification of the facts our society deems to be the most reliability.


Sources for this Article include:

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

Ballantine’s Law Dictionary, 201o Edition.

The Federal Rules of Evidence.

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

Evidence: Cases, Commentary, and Problems 2cnd Edition. David Alan Sklansky.

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