Relevance
A fundamental rule of evidence is that evidence must be relevant to be admissible.[1] Federal Rule of Evidence 401 stipulates that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the actions.” The evidence can be relevant to any part of the case such as an element of a crime, a defense, or a counterclaim.
The purpose of the relevance rule is to balance competing interests. On the one hand, it’s desirable to admit all the evidence helpful to judges and juries tasked with reaching a conclusion. On the other hand, it is also important to keep the fact-finder’s attention properly focused on appropriate evidence and it would be unjust and a waste of time to allow in all evidence regardless of its applicability.
The relevance rule balances these two objectives by allowing almost any evidence to be admitted as relevant as long as it is potentially helpful to the case at hand. The judge overseeing a case has broad discretion to determine whether evidence presented is relevant.
The relevance standard is relatively lenient. The rule’s language states that the evidence just needs to have “any tendency” to make an important fact more or less probable. This means if a piece of evidence is even tangentially related to a part of the case, it is likely relevant.
Let’s look at an example of when a judge deemed evidence relevant, even though the evidence presented was only tangentially related to the case. In Commonwealth v. Petroll,[2] the defendant was charged with vehicular homicide.[3] The prosecution sought to introduce evidence to prove that Petroll had a radar detector in his car that could be used to warn him of speed traps. The prosecution claimed that evidence of the radar detector was relevant because his possession of one showed that Petroll intended to violate speed restrictions. The defense claimed that this evidence was not relevant because it was not used on the day of the car accident. The Pennsylvania Supreme Court agreed with the prosecution and determined that the evidence was relevant, reasoning that possession of the radar detector made Petroll’s intent to drive faster than the speed limit more probable. Therefore, the evidence was admitted even though he didn’t actively use the radar detector on the day that he allegedly committed the vehicular homicide.[4]
In Commonwealth v. Walter, however, the same court deemed evidence irrelevant and inadmissible.[5] In that case, the state charged the defendant with first-degree murder based on evidence of his infant son’s fatal injuries. Specifically, medical personnel found that the victim died from being treated too roughly, which led to shaken baby syndrome. The prosecution wanted to introduce X-rays that showed an old leg injury that the baby had previously suffered, to show a history of abuse at the hands of the defendant. The defense pointed out that there was no evidence linking the defendant to this past injury and therefore the evidence was not relevant. Here, the court agreed with the defense. It reasoned that evidence of the child’s previously broken leg had no connection to the events of the case or the defendant. Thus, it was not relevant and was inadmissible.[6]
Excluding Otherwise Relevant Evidence
Even if relevant, evidence still must pass the hurdles presented by Rules 402 and 403. Rule 402 provides that relevant evidence is admissible unless provided otherwise by the Constitution, a federal statute, the Federal Rules of Evidence or other rules prescribed by the Supreme Court (mainly, a reference to the Federal Rules of Civil Procedure).[7]
For example, the Fifth Amendment protects a person from being forced to incriminate himself. Thus, if a person is forced to incriminate himself, that confession must be barred even though relevant. Fruits of illegal searches and seizures are barred by the “exclusionary rule” for the same reason.[8] Privileges, such as attorney-client and doctor-patient, are also used to exclude otherwise relevant evidence under Article 5 of the Federal Rules of Evidence. Moreover, evidence that was obtained in violation of the Federal Rules of Civil Procedure’s discovery rules may also be excluded, its relevance notwithstanding.
Exclusion Under Rule 403
Rule 403 allows a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.[9]
Rule 403 imposes a balancing test – weighing how important or persuasive the evidence is in proving an aspect of the case against how likely it is that the evidence may have unfairly negative effects. The balancing test is not an exact science and requires a comprehensive examination of several factors. When determining the probative value of a piece of evidence, it is important to consider how persuasive the evidence is, how important are the facts that the evidence supports and whether there are other methods of proving the same facts. When determining the damaging effects of a piece of evidence, a judge must consider whether a limiting instruction can be given, how likely the damage is to occur, how severe the damage would be and how likely the damage is to affect the outcome of the case.
Let’s go through the grounds to exclude under Rule 403, one at a time. The first is potential to mislead the jury. Leahy v. McClain involved the question of liability for a car accident that occurred during a snowy winter night with low visibility.[10] In his negligence lawsuit, the plaintiff sought to introduce into evidence a photograph of the road where the accident occurred to depict the scene of the accident and the road’s topography. However, the photograph was taken during the daytime in July and didn’t fairly depict the visibility at the time of the accident. The court excluded the photo because it was too misleading to the jury, considering that, on the night of the accident, the road looked nothing like what the photograph depicted.[11]
Another reason relevant evidence may be excluded is because it is unfairly prejudicial. In Johnson v. Florida, Johnson was charged with failing to register as a felony sex offender.[12] Johnson admitted to being convicted as a felony sex offender, but the prosecution wanted to introduce evidence regarding the details and nature of his offense. He objected, noting that this evidence would be needless and unfairly prejudicial, given that he was already willing to admit that he was a convicted felony sex offender. The court agreed with the defense, noting that the details of the other sex offense made no difference in the failure to register charge. Therefore, the court excluded the evidence regarding the details of Johnson’s previous offense.[13]
Relevant evidence may be excluded if it is needlessly cumulative. If evidence or the other party’s stipulation has already conclusively proven a fact in question, further evidence of the same fact may be excluded. Think of it as evidence law’s answer to the adage, “enough is enough.”[14] For example, in United States v. Grant, the defendant was convicted of the stabbing death of her boyfriend, but argued that she killed the victim in self-defense during a domestic dispute.[15] During her trial, Grant testified and called seven other witnesses to discuss her boyfriend’s prior violent and threatening actions. The government objected to the calling of yet another witness regarding a previous altercation, arguing that the witness’s testimony would be cumulative, and the district court sustained the government’s objection. It reasoned that through the testimony of the first seven witnesses, there was “enough testimony” on the topic of abuse and that any other testimony from an additional witness would be needlessly cumulative.[16]
Relevant evidence can also be excluded if it wastes time. One of the roles of a trial judge is to oversee the trial and ensure that it runs efficiently. Occasionally, evidence can be relevant to one side’s argument, but that evidence may waste time and hinder the trial’s effectiveness. In one federal case, Burlington N.R. Co. v. Washington Department of Revenue, a railroad company objected to how the state valued the company for purposes of assessing property taxes[17] To make its case that Washington was “discriminating” against it, Burlington wanted to introduce evidence of other states’ valuations of its nationwide transportation properties. The evidence of other valuation methods was relevant to show that Washington acted in a discriminatory manner, but the court didn’t allow it, reasoning that it would “waste time…because of the obvious complications of trying to litigate how and why and on what basis assessments in other states were made.”[18]
Character Evidence
We now move to Rule 404, which outlines the rules regarding character evidence.[19] Character evidence is defined as evidence that speaks to a person’s nature or personality. It is a generalized description of a person’s disposition or a trait that he has or lacks, such as peacefulness or honesty. Generally, character evidence isn’t admissible to prove conduct in conformity with that character on a particular occasion.
Related to the character evidence rule is the prior bad acts rule.[20] Under that rule, evidence of a prior act, such as a crime, is not admissible to prove character or to show that a person may have acted in accordance with a character trait on a particular occasion.
There are several explanations underlying these rules. First, even though character evidence may be “relevant” under Rule 401, its prejudicial effect often outweighs its probative value.[21] Second, evidence of how a person has acted in the past that is not directly related to the current legal issue before the jury may distract the jury from making a focused decision on the issue at hand. The jury may be tempted, either consciously or subconsciously, to more harshly judge someone with a negative past, or more favorably judge someone with a positive past, even if the past had nothing to do with the issue at hand.
In a negligence action, for example, a plaintiff isn’t permitted to offer evidence that a defendant is a careless person or is prone to accidents, to prove that he drove negligently or caused the plaintiff’s injuries. In Mathis v. Phillips Chevrolet, for example, the plaintiff unsuccessfully applied for a car salesman position and sued the dealership for age discrimination after the dealership hired seven applicants younger than him.[22] During the lawsuit, the dealership’s attorney sought to introduce evidence that the plaintiff had filed numerous lawsuits against other car dealerships throughout the state and that he had a “litigious” nature. The court didn’t permit the introduction of this evidence under Rule 404. It would be too prejudicial to imply that because he had filed other lawsuits in the past, that the current suit was baseless.[23]
Similarly, in a criminal prosecution for assault and battery, prosecutors may not introduce evidence that the accused has issues with rage and violence to prove that he committed the assault with which he’s charged. In United States v. Madden, Madden was charged with committing bank robbery.[24] The prosecution sought to introduce evidence of Madden’s prior drug use and addiction to show that the defendant had a motive to rob a bank in that his drug problem was expensive to maintain. The defense argued that the drug evidence was being used to show that because the defendant had committed “bad” acts in the past, he was likely committed the bad act at issue in the case. The court noted that while a drug addiction can be expensive, it is not automatically a motive to commit a robbery, especially with no other evidence connecting the two acts. So, it sided with the defense and concluded that the evidence was, in fact, being used to show the defendant’s bad character, and so was inadmissible under Rule 404.[25]
Objecting to Inadmissible Evidence
An attorney who seeks to exclude otherwise relevant evidence may do so in either of two ways. If the attorney knows that the evidence is going to be introduced before the trial, she can ask the judge to anticipatorily rule the evidence to be inadmissible. A motion before the trial to exclude certain anticipated evidence from being introduced is sometimes called a motion in limine, which is Latin for “at the threshold.”[26]
The other party will be given an opportunity to defend its admissibility. Depending on the importance of the issue and whether there are time constraints, each side may be given the opportunity to submit written arguments and/or engage in oral arguments on the issue. By settling the issue of admissibility before trial, each party will have a better idea of how to present its case.
If objectionable evidence is introduced at trial, the opposing attorney can object to the evidence’s introduction at that time. An attorney can ask for a sidebar conference with the judge where both parties can argue the objection away from the jury. Even if unsuccessful, objecting to the introduction of evidence preserves the issue for appeal. As discussed in the first module, there are some cases in which issues can be appealed during the case, a process known as interlocutory appeal, though those are rare in cases of evidence.
In our next module, we’ll continue our study of character evidence and relevance. We’ll learn about types of evidence that are relevant but are excluded for public policy reasons, such as subsequent remedial measures. We’ll also learn about the exceptions to the bar against character evidence, the cases in which character evidence is admissible and how character evidence may be proven when admissible.
[1] Fed. R. Evidence 401.
[2] Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super. Ct. 1997).
[3] Id. at 822.
[4] Id. at 833.
[5] Commonwealth v.Walter, 849 A.2d 265 (Pa. Super. Ct. 2004).
[6] Id. at 268.
[7] Fed. R. Evid. 402.
[8] Mapp v. Ohio, 367 U.S. 643, 648 (1961).
[9] Fed. R. Evidence 403.
[10] Leahy v.McClain, 732 A.2d 619 (Pa. Super. Ct. 1999).
[11] Id. at 625.
[12] Johnson v. State, 842 So. 2d 228 (Fla. Ct. App. 2003).
[13] Id. at 230.
[14] Nathan Kooker, “An Epistemological Argument Against Federal Rule of Evidence 403’s Cumulative Evidence Clause”, 103 Iowa L. Rev. 1753 (2018).
[15] United States v. Grant, 563 F.3d 385 (2009).
[16] Id. at 393-94.
[17]Burlington N.R.R. v. Department of Revenue, 23 F.3d 239 (1994).
[18] Id. at 241.
[19] Fed. R. Evid. 404(a).
[20] Fed. R. Evid. 404(b).
[21] United Statesv. Moccia, 681 F.2d 61, 63 (1st Cir. 1982).
[22] Mathis v.Phillips Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001).
[23] Id. at 774.
[24] U.S. v. Madden, 38 F.3d 747 (4th Cir. 1994).
[25] Id. at 752.
[26] What is a “motion in limine”?, Rottenstein, http://www.rotlaw.com/legal-library/what-is-a-motion-in-limine/