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Some Thoughts on Relevance

June 14, 2011

Let’s focus on the two aspects of relevance: (1) its “role” in the structure of evidence analysis, and (2) the question of what is relevant and what is not.  In a minute, I’ll give you my thoughts on how to determine what evidence is relevant, but before I do that I want to spend a little time expanding on the significance of the distinction between relevant and irrelevant, that is, the “role” of relevance.  I talked about it already in “Thinking Through the Structure of Evidence,” and repeatedly in class.  Let’s see what some others have to say:

The cornerstone of modern evidence law is relevance.  Its rationalist tones may not engender the passion of notions like prejudice, due process, or even privilege.  Yet its theoretical and practical importance cannot be denied.  For example, the heart of the Federal Rules of Evidence, Rule 402, codifies the two fundamental principles of the common law of admissibility: the presumptive admissibility of relevant evidence and the inadmissibility of irrelevant evidence.  Relevance is the threshold admissibility issue, applicable to every piece of evidence offered.

Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U.L. Rev. 447 (1990).

As Professor Nance explains, Rule 402 embodies the central concept upon which the Federal Rules of Evidence were based.  If evidence is relevant, it’s admissible.  With some minor exceptions, this is the only rule of evidence which “admits” evidence.  The Advisory Committee on the Federal Rules of Evidence explained this in its “Note” to Rule 402:

The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are “a presupposition involved in the very conception of a rational system of evidence.”  Thayer, Preliminary Treatise on Evidence 264 (1898).  They constitute the foundation upon which the structure of admission and exclusion rests.

The rest of the rules serve two basic purposes.  Some rules explain to us the way trials and rulings on evidence work.  Examples include Rules 101 and 1101, which set forth the scope and applicability of the Rules; and Rule 104, which gives us guidelines on how judges make decisions preliminary to rulings on evidence.  Most of the other rules serve to “exclude” relevant evidence.  That’s why the next words in Rule 402 are

“. . . except as otherwise provided . . . by these rules . . . .” 

The point of the authorities quoted above is that we never get to any of that, however, if the evidence is not relevant.  Perhaps this “central concept” of the law of evidence should have been included in Rule 1, but we find it in Rule 402, which begins:

“All relevant evidence is admissible … .”

This “central concept” is fundamental to understanding how all of the other rules apply to the situations you face on a daily basis.  But it also requires us to be able to argue what is relevant and what is not.  Here is what Rule 401 tells us:

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

In my experience arguing and deciding questions of relevance for the last twenty-three years, an astute trial lawyer or trial judge who is familiar with the issues in the case and the general nature of the evidence available on those issues will know on a gut level ninety-five or more percent of the time whether a specific piece of evidence meets the Rule 401 definition of relevance.  So, most of the time this simple proposition will correctly answer a relevance question:

If it strikes you as relevant, it is.  If you’re a judge, go with your gut.  If you’re a lawyer, explain it in normal everyday “cocktail party” talk, and the judge will understand.

On most of those relatively rare occasions when a lawyer or judge might miss the relevance of a piece of evidence, or, when the lawyer or judge is fooled into thinking a piece of evidence is relevant when it’s not, all that is required to straighten out the matter is the clever argument of a lawyer; one who has mastered the structure of evidence and can therefore think creatively about the case.

Let’s look at this example of the power of a good argument.  Sergeant Thomas Clark, an officer with the U.S. Park Service Police, was primarily responsible for the arrest and subsequent conviction of James A. Foster for unlawfully possessing crack cocaine with the intent to distribute it within 1000 feet of a school.  At trial, Sergeant Clark described in substance that he observed a man in a parked car engaged in activity Clark believe to be a drug transaction.  One of the actions Clark testified Foster took was to “pass something to a person seated in the back seat of a car.”  When Foster’s lawyer asked Clark on cross-examination whether Clark could see the facial features of the other man, the government objected.  The prosecutor’s argument in support of the objection must have gone something like this:

Judge, what difference could the identity of the other person make in this case?  The fact that there was a person, that things were passed back and forth, and that Clark later found drugs in a bag and cash on Foster are all we need.  The identity of the other person does not meet the definition of relevance under Rule 401 unless he is called to testify.  He has no connection to this case, Judge.  The evidence is not relevant. 

The district judge sustained the objection.  The D.C. Circuit explained the judge’s error. 

Whether Clark could see inside the car on the parking lot well enough to identify its occupants was a matter of consequence at trial.  If he could not perceive the features of the person in the back seat this would tend to make it less likely that he was able to recognize the person in the front seat as Foster, and vice versa.  Defense counsel’s question to Clark about this subject therefore sought relevant evidence and the district court should have allowed it.  It is of no moment that a negative answer by Clark would not have conclusively proven that he had misidentified Foster as the person possessing the bag of cocaine.  Evaluating all the evidence on a particular issue is for the jury.  Each piece of evidence need not be conclusive: “A brick is not a wall.”  1 McCormick on Evidence § 185, at 776 (J. Strong ed., 4th ed. 1992); see Advisory Committee’s Note to Rule 401, Fed.R.Evid.

Somewhere along the way, a lawyer made that winning argument and the appeals court accepted it.  The case is United States v. Foster, 986 F.2d 541 (D.C. Cir. 1993).  It’s in Our Book, 121. 

When we break that gut-level recognition of relevance down, as the D.C. Circuit did in Foster, we see that there are two elements of relevance.  The standard description of those elements is found in United States v. Hall, 653 F.2d 1002 (5th Cir. 1981):

The essential prerequisite of admissibility is relevance.  Fed.R.Ev. 402.  To be relevant, evidence must have some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Id. 401.  Implicit in that definition are two distinct requirements: (1) The evidence must be probative of the proposition it is offered to prove, and (2) the proposition to be proved must be one that is of consequence to the determination of the action.  McCormick on Evidence § 185, at 435 (2d ed. 1972); 1 Weinstein’s Evidence ¶ 401(03), at 401-13 (1980); 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5162, at 18 (1978).  Whether a proposition is of consequence to the determination of the action is a question that is governed by the substantive law.  Simply stated, the proposition to be proved must be part of the hypothesis governing the case a matter that is in issue, or probative of a matter that is in issue, in the litigation.  McCormick on Evidence, supra, § 185, at 434; 1 Weinstein’s Evidence, supra, ¶ 401(03).

653 F.2d at 1005 (I added the emphasis).  Hall is in Our Book, 125.

Let’s look at a case in which the two elements of relevance led to the conclusion that evidence was not admissible.  Esther Cassidy and John Schuchardt were convicted in the Eastern District of Virginia of depredation of government property because “they threw or poured blood and ashes on the walls and ceiling of the Pentagon in the course of a demonstration against the design and possession of nuclear weapons.”  On appeal, the defendants claimed the District Judge erred in not admitting evidence that the United States’ nuclear weapons policies violate international law.  On a gut level, that is something I would want to know: why would Esther and John do that?  In that sense, the simple, gut-level test might mislead me.  In United States v. Cassidy, 616 F.2d 101 (4th Cir. 1980), the Fourth Circuit explained that while the evidence might be interesting, it was not probative of any fact that is of consequence to the determination of the action, and thus did not meet the second element from Hall:

The district court denied this request and subsequently refused to admit evidence on these points. We find no error in these rulings because, even if possession of nuclear weapons is illegal as defendants contend[,] an issue that we do not address[,] the necessity defense is inapplicable. As sought to be applied here, essential elements of the defense are that defendants must have reasonably believed that their action was necessary to avoid an imminent threatened harm, that there are no other adequate means except those which were employed to avoid the threatened harm, and that a direct causal relationship may be reasonably anticipated between the action taken and the avoidance of the harm. Even if we accept defendants’ reasonable belief, we do not think that the elements of lack of other adequate means or direct causal relationship could be satisfied.

616 F.2d at 102.

Back to “Why?”

The Foster case above helps us to prove the importance of “why” the evidence is offered.  If we think of the question “could you see the facial features of the man in the back seat” as an inquiry to prove the identity of the person in the back seat, we can find no relevance.  However, when we see that the question was asked for the purpose of showing the difficulty of seeing faces in the car, we see the relevance of the evidence.

Footnote on “Why?”

Take a look at Marvin’s Quattlebaum’s comment to the “Why?” blog about the multiple purposes of evidence.  We’ll talk about this again.

One Comment leave one →
  1. Tanya Gee permalink
    June 14, 2011 5:53 pm

    Hello all! I have been lurking on this blog hoping to later impress Judge Few by regurgitating his very own thoughts back to him and setting up an artificial “great minds think alike!” moment. So, by commenting, I am losing out on that opportunity to instead impress him by commenting on his blog. (And here you thought your days of kissing up would end upon graduation!)

    As Clerk of Court at the SC Court of Appeals, I am on several listservs, and only last week, someone posted a link to a recent case from the Georgia Supreme Court involving irrelevant evidence. The case is Boring v. State (found here:, and I think you’ll find it much more interesting than its name implies…(bah-dump-bump). The appellant, a teenage girl who was convicted of murdering her mother, argued on appeal that the trial court should not have allowed the State to introduce “irrelevant and highly prejudicial character evidence” of her “goth” lifestyle. The Supreme Court of Georgia agreed and reversed. What you may find interesting about the Boring opinion (that joke never gets old!) is that the Supreme Court does not merely stop there, but goes on to explain that the nature of the evidence was highly inflammatory and relies on this “prejudice” to reverse.

    As Judge Few explains in his blog, once evidence is deemed irrelevant, it is excluded – end of story. So, you may wonder why the Boring Court (resisting…urge…to…make…snarky…comment) goes on to discuss prejudice. It may seem as though the Court is engaging in a Rule 403 analysis and comparing the probative value of the evidence against its prejudicial effect. But it’s not. Such a balancing test is only required when relevant evidence is excluded. Instead, the Court “goes there” because it is considering an appellate concept – that of reversible error. To win on appeal, the appellant must not only prove the trial court committed error, but that the error was prejudicial (a fancy way to say, the error had to have made a difference to the outcome of the trial). So, don’t let yourself get mixed up when you read appellate courts discussing prejudice even after determining that evidence is irrelevant. At TRIAL, if you can convince the judge that evidence is irrelevant, then your job is done!

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