Part three, Relevance. Section one, Definitions.

relevancy

With the preliminary matters of definitions and burdens of proof out of our way, we're next going to talk about relevance. When we use this term in regular conversation, we're usually talking about whether something is related to the topic we're talking about. The legal definition is a little more specific. Evidence is relevant if it has any tendency to make a material fact more or less probable.

For example, you have a case about whether a person's will is authentic. Evidence that the person owned the kind of vintage typewriter that the disputed will is printed on is relevant to the inquiry because it makes it more likely that the person actually wrote it. Evidence that the person had a vintage concert t-shirt, on the other hand, without more connection to the case, is probably not relevant. As you can see, this is a pretty broad definition. Indeed, the rule around relevance is similarly broad: all relevant evidence is admissible. On the flip side, only relevant evidence is admissible.

all relevant evidence is admissible

Relevance is a great topic to bring up on any evidence-related bar exam essay question because you can always score a point by saying that general rule, " All relevant evidence is admissible," and then applying it to the facts in question. For example, here, evidence X is relevant because it tends to make fact Y more probable.

exceptions

Perhaps because of the broadness of that rule, there are a few exceptions you should know. These are when evidence might be relevant, but it shouldn't be admitted because its value is outweighed by other considerations. There are six of those other considerations, and they fall into three general categories: unfair prejudice, confusion, and waste of time.

unfair prejudice

The first and probably most common on the exam is prejudice. Essentially, a court will say, " We know that this might make some disputed fact more or less probable, but it's going to tilt the scales too much in a way that's unfair." Unfair here means that whatever evidence it is provokes too much sympathy or bias or hostility, and the value of the evidence is less than whatever value it creates by proving facts. This determination is highly fact-specific and depends on what the causes of action are.

Take evidence of a defendant's past in trafficking in child porn, a topic that is highly likely to disturb and inflame a jury. If the defendant is charged with trafficking in wild animals, the prosecution may want to present the evidence of his porn trafficking to show that the defendant knew his way around the black market. The judge may find, however, that evidence of the child porn, while possibly relevant to the wild animals charge, is just too likely to unfairly prejudice the jury against the defendant.

Of course, if the case is about child porn, it wouldn't be unfair at all to show such evidence in the course of the prosecution, even where it would be highly prejudicial. Be careful of this on the exam. You want to make sure that the prejudice is so great that it's unfair, that it substantially outweighs the probative value.

Confusing and misleading the jury

The second reason that a judge could decide not to admit evidence, even if it's relevant, is the risk of confusing a jury. This takes two forms, confusing the issues and misleading the jury. These are often used by courts interchangeably, with judges simply referring to "confusing and misleading" in their decisions without separating them out. Remember both, but you likely won't find one without the other.

Take an example from a products liability case where a car exploded during a collision. The issue before the jury is whether the car exploded because it was defective in some way— bad wiring, or leaky gas tank, et cetera. Evidence that the surviving driver pleaded guilty to manslaughter after the collision could mislead the jury into thinking about the driver's fault in operating the vehicle, as opposed to thinking about a manufacturing or a design defect of the car that exploded.

We want the jury thinking about the design of the car, not about the fault of the driver, so introducing the driver's guilty plea could confuse or mislead them. Other possibilities would be evidence about developments in related legal proceedings, such as evidence of the failure to prosecute other parties, or reports containing ambiguous legal terminology, such as a police report stating that an officer died "in the line of duty," when it's actually up to the jury to decide whether he was on duty at the time.

judicial economy

So far, we have two categories containing three reasons a judge could decide whether the evidence is more prejudicial than probative. First, whether it causes unfair prejudice, and second, whether it could confuse or mislead a jury. The final considerations are less about confusing and misleading and more about the judge. After all, we trust judges to be able to sort the good stuff from the bad more than the average juror off the street. These final considerations are really about judicial economy, recognizing perhaps, "Life is short. Let's move things along."

The three reasons here are undue delay, waste of time, and whether the evidence is unduly cumulative. These are relatively self-explanatory. For the first, undue delay, a judge could keep out evidence that would unduly delay the case by, for example, waiting to subpoena a hard to reach witness whose testimony might not actually be that instructive. Second, waste of time could happen where a party has already called the first five witnesses at a gathering and wants to call the other 15 to testify to the same thing that the first five said. It's just a waste of time. Finally, whether the evidence would be cumulative, for example, reading a document into the record that a witness has already firmly established by testimony. When an attorney wishes to keep out evidence under any of the above categories, they will object on grounds of relevance. The judge will then either overrule the objection, allowing the evidence, or sustain the objection, keeping it out.

review

Let's do a quick multiple-choice review. Which is the least likely reason for the court to rule a piece of evidence inadmissible? A, unfair prejudice. B, undue delay. C, unduly cumulative. Or D, unfair surprise. The answer is D because unfair surprise is not one of the pragmatic considerations discussed under the evidentiary rules. Really, it's a discovery issue that's better handled by the judge in the case than through the rules of evidence.