Relevance

Question 1

FRE 401: Test for Relevant Evidence

Answer 1

• Test for Relevant Evidence: Evidence is relevant if it has a tendency to make existence of any fact that is of consequence to determination of the action more probable or less probative than it would be without the evidence.
• Evidence is relevant if it has probative value about a material matter.
• Two key concepts: Materiality and probative value

Question 2

FRE 402: General Admissibility of Relevant Evidence

Answer 2

• Relevant evidence will generally be admitted unless prohibited by the Constitution, statute, or FRE
• But irrelevant evidence will always be excluded

Question 3

FRE 403

Answer 3

• Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
• Most important rule - all the bad stuff summarized
• Balancing test: Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of: unfair prejudice, confusing the issues, misleading jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
• Prejudice is most commonly cited.
• Transcendent principle of exclusion: Harmful effect must not substantially outweigh relevance.
• All evidence is prejudicial to other side or it wouldn’t be offered; key question is whether prejudice is disproportionate to probative value (i.e., unfair prejudice).

Question 4

Motions in Limine

Answer 4

• Any party may make a motion in limine, which requests the court to make an evidentiary ruling before trial.
• These rulings may be revisited by the judge at trial, but parties will frequently structure their litigation strategy around a court’s ruling in limine.

Question 5

Limiting Instruction

Answer 5

• FRE 105
• If an out-of-court statement is admissible for one purpose but not another, under FRE 105, the objecting party is entitled to a limiting instruction telling the jury the proper purpose and the forbidden purpose.

Question 6

Relevance Checklist: Step 1

Answer 6

Step 1: Does the evidence proffered have any tendency at all to make a material fact more or less likely?
- If yes: The evidence is relevant under FRE 401 and the judge should weigh the admissibility of the evidence under FRE 403. Go to Step 2.
- If no: The evidence is not relevant under FRE 401 and should not be admitted.

Question 7

Relevance Checklist: Step 2

Answer 7

Step 2: In setting out the factors for the Rule 403 balancing test, determine how much probative value the piece of evidence has standing alone.
Go to Step 3.

Question 8

Relevance Checklist: Step 3

Answer 8

Step 3: Is there alternative evidence in the case that proves the proposition in question in a less prejudicial manner?
- If yes: The probative value of the evidence is diminished by the availability of other evidence on the same point. Go to Step 4.
- If no: The probative value of the evidence is arguably enhanced. Go to Step 4.

Question 9

Relevance Checklist: Step 4

Answer 9

Step 4: In setting out the factors for the FRE 403 balancing test, consider the unfair prejudice, confusion, distraction, or waste of time that the evidence might generate.
Go to Step 5.

Question 10

Relevance Checklist: Step 5

Answer 10

Are the Rule 403 “dangers” diminished by a limiting instruction under FRE 105?
- If yes: Discount the unfair prejudice in conducting the Rule 403 balancing test. If the evidence is ultimately admitted, use a limiting instruction. Go to Step 6.
- If no: Go to Step 6.

Question 11

Relevance Checklist: Step 6

Answer 11

Step 6: Conduct the Rule 403 Balancing Test: Does the unfair prejudice, confusion, distraction, or waste of time substantively outweigh the probative value?
- If yes: The evidence is excluded.
- If no: The evidence is admissible subject to other rules (e.g., character evidence, hearsay, etc.).