Evidence

Part of the common law series

Types of evidence

Testimony · Documentary Physical / Real · Digital Exculpatory · Scientific Demonstrative Eyewitness identification Genetic (DNA) · Lies

Relevance

Burden of proof · Laying a foundation Public policy exclusions Character · Habit · Similar fact

Authentication

Chain of custody Judicial notice · Best evidence rule Self-authenticating document Ancient document

Witnesses

Competence · Privilege Direct examination · Cross-examination  · Redirect Impeachment · Recorded recollection Expert witness · Dead Man's Statute

Hearsay and exceptions

in English law · in United States law Confessions · Business records Excited utterance · Dying declaration Party admission · Ancient document Declaration against interest Present sense impression · Res gestae Learned treatise · Implied assertion

Other common law areas

Contract · Tort · Property Wills, trusts and estates Criminal law

v • d • e

Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."^[1] Probative evidence "seeks the truth". Generally in law, evidence that is not probative (prejudicial evidence), or doesn't prove anything, is inadmissible and the rules of evidence permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel."^[1] A balancing test may come in to the picture if the value of the evidence needs to be weighed versus its prejudicial nature.

Contents 1 Under the Federal Rules of Evidence (United States) 1.1 Evidence and the Matter Properly Provable 1.2 Relevance and Admissibility 1.2.1 Relevance is Required but May Not be Sufficient 1.3 Inadmissible versus Excluded Evidence 1.4 Exclusion of Relevant Evidence 1.5 Preservation of the Issue 1.6 Public policy concerns 2 Canada 2.1 Canadian history 3 References 4 See also

[edit] Under the Federal Rules of Evidence (United States)

Rule 401 of the Federal Rules of Evidence defines the term as follows:

"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.

This definition incorporates the requirement that evidence be both material ("of consequence to the determination of the action") and have probative value ("having any tendency to make the existence of any [material] fact...more probable or less probable than it would be without the evidence").^[2]

[edit] Evidence and the Matter Properly Provable

According to the notes of the Advisory Committee appointed to draft the Federal Rules of Evidence,

Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.^[3]

The United States Court of Appeals for the District of Columbia Circuit explains the concept of "matter properly provable" as follows:

The initial step in determining relevancy is therefore to identify the "matter properly provable." As Professor James explained in a highly-regarded article, '[t]o discover the relevancy of an offered item of evidence one must first discover to what proposition it is supposed to be relevant."^[4]

[edit] Relevance and Admissibility

Generally, relevant evidence is admissible.^[5] However, relevant evidence is not admissible if prohibited by the Constitution, an Act of Congress, by the Federal Rules of Evidence, or by rules prescribed by the Supreme Court.^[6] Under the Federal Rules of Evidence, relevant evidence may be excluded on the basis of enumerated grounds.^[7]

[edit] Relevance is Required but May Not be Sufficient

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Relevance is ordinarily a necessary condition, but not a sufficient condition, for the admissibility of evidence. For example, relevant evidence may be excluded if its tendency to prove or disprove a fact is heavily outweighed by the possibility that the evidence will prejudice or confuse the jury.

[edit] Inadmissible versus Excluded Evidence

FRE 402 refers to relevant evidence as 'inadmissible' if 'otherwise provided by' several sources of law.^[8]. Yet, FRE 403 refers to 'exclusion of relevant' evidence.^[9] It is clear that evidence excluded under FRE 403 is inadmissible. However, it is not clear that inadmissible evidence is considered 'excluded' within the meaning of the Federal Rules of Evidence.

[edit] Exclusion of Relevant Evidence

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of one of the enumerated grounds for exclusion.^[10] The grounds for exclusion include unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:

• unfair prejudice;
• confusion of the issues;
• misleading the jury;
• considerations of undue delay;
• waste of time; or
• needless presentation of cumulative evidence.

In an exemplary hypothetical; if 100 witnesses saw the same accident, and would each give roughly the same description of the event, the testimony of each would be equally relevant, but it would be a waste of time or a needless presentation of cumulative evidence to have all 100 repeat the same facts at trial.

[edit] Preservation of the Issue

To preserve legal error for review, objections must be raised.^[11] Often objections against the introduction of evidence are made on the basis of relevance. However, the rules and opinions demonstrate that relevant evidence includes a significant portion of typically offered evidence. Since objections are required to be specific and timely, merely objecting on the basis of relevance, without more, may prevent the review of legal error on appeal.^[11][12] More particularly, making an objection based on “relevance” does not preserve an error based on Rule 403.^[12] Cases that lack specific and timely objections are sometimes referred to as having "poor records" because errors made by the lower court may not be reviewed on appeal.

[edit] Public policy concerns

A variety of social policies operate to exclude relevant evidence. Thus, there are limitations on the use of evidence of liability insurance, subsequent remedial measures, settlement offers, and plea negotiations, mainly because it is thought that the use of such evidence discourages parties from carrying insurance, fixing hazardous conditions, offering to settle, and pleading guilty to crimes, respectively.

[edit] Canada

The Canadian judiciary system utilizes the term "probative" which also signifies “prove to be worthy.”^[13]

[edit] Canadian history

In 1970 The Supreme Court of Canada was concerned with exclusionary discretion within the judicial system. In R. v. Wray^[13] the term “probative value” is used to explain that “judges in criminal cases do not have a discretion to exclude evidence because of how it was obtained.”^[14]

“

The trial judge's discretion to exclude admissible evidence does not extend beyond his duty to ensure that the minds of the jury will not be prejudiced by evidence of little probative value, but of great prejudicial effect. Exclusion of evidence on the ground that, although its probative value was unquestionable, it was obtained by methods which the judge considers to be unfair, has nothing to do with his duty to secure a fair trial for the accused.”[13]

”

The sole discretion to exclude evidence is based on the weighing of prejudical value and probative value. Where the material evidence is being considered for exclusion:

“

...a judge must determine the value of the evidence based on reliability and the strength of the inference it lead to, against the cost presented by such evidence, including things as diverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case.”[15]

”

Every day judges are faced to weigh the probative value versus the prejudicial impact. A part of this is symbolized by a weighing scale and represents justice.

[edit] References

[edit] See also

• Evidence
• Prejudice (legal procedure)
• Value (law)