September 26, 2011 Evidence

Relevance is one of those concepts most trial lawyers take for granted. They feel no reason to examine the rules because the concept is self-evident, isn’t it? Not a chance. They are missing out on a big advantage. Relevancy is the most pervasive concept in evidence law. It carries great advantages for both direct examination and cross. The failure to take advantage of its extremely broad provisions is a mistake. Let’s take a look at it.  Start with FRE 402 which has a general provision to admit all relevant evidence unless specifically excluded by another rule, statute or constitutional provision. This makes the default provision as admissible unless the opponent finds a reason to keep it out. Hammer the judge with 402. The judge must make your opponent articulate a legitimate reason why the evidence is inadmissible.

Now let’s look at the definition of relevance.

FRE 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.”

There is something simple yet brilliant in the few words that define relevance, like the Gettysburg Address or the 23rd Psalm. Simple clear understandable words which everyone seems to underestimate.  Rule 401 is the perfect teaching tool along with FRE 803(6).  I demand my students to be able to quote the words of the rule. Every trial lawyer should be able to quote it. Why? Because it is a killer when seeking admission of evidence.

The standard only requires that the evidence be more or less probable with the evidence than without the evidence. The consequential facts are a matter of substantive law — (1) the elements of the charged crime, (2) the elements of a cause of action, (3) the elements of an affirmative defense, and (4) damages in civil cases. Relevancy is determined by logic as informed by experience or science. See the advisory note to FRE 402:  “principles evolved by experience and science, applied logically to the situation at hand.”

Here is what I am looking for from a student arguing admissiblity of evidence: a logical process of deduction from the evidentiary fact to the fact of consequence to an essential element as defined by the cause of action. One can construct chains of experiential and logical propositions — long chains, admittedly — that connect each of these two items of evidence to the issues in the case. As Professor McCormick teaches us  “a brick is not a wall.”

The proponent of a piece of evidence must tell and repeat to the judge if necessary the words of Rule 401 and then articulate a chain of reasoning tying the testimony to the case. The proponent can support the argument by emphasizing the policy favoring circumstantial inferences, by relying on the drafters’ intent to leave the evaluation of such inferences to jurors who use their own experiences, and by pointing out that the evidence is not required to be the best possible in order to qualify for admissibility.

“Any Tendency”

Can we articulate a standard lower than any tendency? Every semester and every seminar I dare lawyers and students to formulate a test with a lower standard than “any tendency.” Try it. So why in 40 years of trying cases have I never heard a lawyer use it? I can’t answer that except to say presumption. They feel everyone knows what relevancy is so why read or quote from the rule? They expect the judge to figure it out for them.
“Any tendency” means even if the evidence is a slight bit more probable, it should be allowed. This is barely any “standard” because it authorizes admission of every arguable proposition no matter how low its probative value or how weak it is. The Advisory Committee does not explain its choice of this formula, although the Committee’s Note analyzes each of the other phrases considered above. “Any” is a word that connotes the broadest possible universality, including the minute or infinitesimal. The dictionary offers such alternate definitions as “in whatever quantity or number, great or small; some” or “in whatever degree; to some extent; at all.” Taken literally, the word “any” thus signifies that the definition includes evidence with the slightest degree of probative value, even that which is infinitesimally small.


At first blush you would assume that 401 is helpful only on direct examination and for the introduction of exhibits. Thus the prosecutor reaps the most benefit. But you are overlooking a wonderful gift for the cross-examiner. One function of cross examination is eliciting evidence. Most judges don’t focus on this and the lawyers never mention this rule. A rule which opens Pandora’s box. A rule designed to allow even the most minute evidence. There is no legitimate objection to questions on cross examination.

Our knee jerk reaction is to immediately cite to the Sixth Amendment right of confrontation. Why go right to the minimum we are allowed? The 401 “any tendency” gives so much more. It should be the first objection then add confrontation. We immediately go to the end instead of the beginning. Start with 401 any tendency, then cycle through any other rule which bears on the subject matter and end with confrontation. And get a ruling on each rung of the ladder.

Furthermore, the judge must hesitate in curtailing a line of questioning that he does not yet understand and the attorney may be able to “connect up” to a material issue later, i.e., see the Advisory Committee’s note (“Any more stringent requirement is unworkable and unrealistic.”).

Thus it is a counterintuitive but unavoidable fact that irrelevance is more difficult to argue. Every offered item is likely to be relevant because it carries greater than zero probative value. And the rule does not have a threshold requirement of some amount of probative value, and it offers no guidance in determining the level that satisfies this minimum requirement.

There is a bar in FRE 611 which provides that “[t]he court shall exercise reasonable control” over witnesses’ examinations so as to “(1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” But I don’t think this trumps FRE 401 if there is any reasonable basis for the question.

Some rules are more important than others. There are probably 10 rules you must know. I train students to memorize the language of these critical rules. None is more important than the definition of relevance in FRE 401. Wigmore, the great evidence seer, envisioned that relevance required some force, more than the minimum, to be admissible. The rules committee rejected his requirement and reduced the burden for admissibility to virtually zero. Why not take advantage of it?