RELEVANCE (R)
FRE 402
All evidence introduced at trial must pass the relevancy threshold. If an item of evidence is not relevant to any matter at issue in the case, then it is objectionable as having a lack of relevance. “Relevant evidence” is evidence that (1) relates to a fact of consequence to the case and (2) tends to make that fact more or less probable.
Examples
- “If you had to guess, what was the best play you had previously seen at Ford’s Theatre?”
- “If you could have chosen someone other than Clara Harris to accompany you, who would it have been?”
- “What’s your favorite flavor of ice cream?”
- “What punishment should the defendant receive?”
FRE 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
FRE 402. General Admissibility of Relevant Evidence
…
Irrelevant evidence is not admissible.
Summary
The rule is written with a presumption that all evidence is relevant – “all relevant evidence is admissible except…” “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. Relevance involves both materiality and probative value. In the wise words of McCormick on Evidence, “Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. Probative value deals with the tendency of the evidence to establish the proposition that it is offered to prove.”
The threshold under Rule 401 is very low. The degree of materiality and probativity necessary for the evidence to be considered relevant is minimal.
Even though a piece of evidence may be relevant, it can still be excluded under Rule 403 as cumulative, prejudicial, or confusing.
Case Law (Relevance)
- Plyler v. Whirlpool Corp., 751 F.3d 509 (7th Cir. 2014) (in products liability case, evidence of emotional impact of divorce relevant to rebut the claim that fire caused plaintiff’s emotional distress)
- Collins v. Marriott Intern., Inc., 749 F.3d 951 (11th Cir. 2014) (plaintiff's intoxication is normally relevant in tort cases, especially in a comparative negligence assessment for the apportionment of liability)
- U.S. v. Molton, 743 F.3d 479 (7th Cir. 2014) (gang affiliation must be treated carefully to avoid guilt by association; gang membership was relevant to explain why defendant, a convicted felon, would have an assault rifle)
- • In re City of New York, 475 F. Supp. 2d 235 (E.D. N.Y. 2007), judgment aff'd and remanded, 522 F.3d 279 (2d Cir. 2008) (in action brought by passengers injured in ferry crash, evidence that city’s internal rule required two pilots to be present in pilothouse at all times ferry is underway was relevant under Rule 402, despite the fact that two pilots were not legally required)
- U.S. v. Sells, 477 F.3d 1226 (10th Cir. 2007) (evidence of methamphetamine manufactured in another home on same property as defendant's residence irrelevant when no evidence connected defendant with other home)
- Skultin v. Bushnell, 82 F. Supp. 2d 1258 (D. Utah 2000) (evidence that two plaintiffs were adult entertainers and third worked in legal brothel irrelevant in civil rights action)