§ 11.3 Relevancy

LibraryADR in Oregon (OSBar) (2019 Ed.)
§ 11.3 RELEVANCY

§ 11.3-1 In General

The AAA's rules provide that "[t]he arbitrator shall determine the admissibility, the relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant and conformity to legal rules of evidence shall not be necessary." Lab Arb Rules R 27 (Am Arb Ass'n 2013), available at < www.adr.org/labor >. See also Com Arb Rules and Mediation Proc R-34 (Am Arb Ass'n 2013), available at < www.adr.org/commercial >.

Arbitration hearings do not follow exclusionary rules of evidence, except in rare instances. Arbitrators believe it to be the better practice generally to admit evidence rather than to exclude it. Indeed, one ground for a court's upsetting an arbitration award is the arbitrator's failure to hear evidence "pertinent and material to the controversy." 9 USC § 10(a)(3). See also ORS 36.705(1)(c) (allowing the court to vacate an arbitration award if the arbitrator "refused to consider evidence material to the controversy"). See § 11.3-5 (erroneous exclusion of evidence). Nevertheless, there must be some limits to what evidence an arbitrator will admit. A more accurate way to describe the general rule of the admissibility of evidence in arbitration focuses on the importance of the evidence in relation to the issues of the arbitration proceeding rather than on exclusionary rules of evidence.

The practical reality is that most objections based on a lack of relevancy are overruled in arbitration hearings, and evidence generally is accepted "for what it's worth." The looser standard of relevancy applied in arbitration is that "[e]vidence is relevant if it tends to support a party's case or tends to impeach the testimony of a witness." Theodore J. St. Antoine, The Common Law of the Workplace 46 (2d ed 2005).

A few arbitrators apply a reasonably strict judicial standard to the relevance of evidence. One arbitrator has observed:

There is no great trick to identifying what is relevant and what is material. Relevant evidence is evidence, in whatever form, that tends to establish the existence of a fact that is of consequence to the judgment of the arbitrator when considering and determining the merits of a grievance put at issue. . . . If the proposed evidence is clearly not relevant, and an objection to its admission is advanced, it should be rejected at the hearing and not with a surprise statement tucked somewhere in the award that follows.

40 Nat'l Acad of Arb 112-13 (1988).

Unless the agreement of the parties dictates otherwise, an arbitrator is free to use the Federal Rules of Evidence (FRE) as a source of guidance in determining the relevance of evidence in an arbitration hearing. FRE 104(e) provides that "[t]his rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence."

Application of the relevancy requirement in arbitration hearings is necessary for at least three reasons: (1) to focus the presentation of evidence on the genuine issues in the case, (2) to prevent unfair prejudice to parties, and (3) to prevent the hearing from becoming unduly protracted.

OEC 401 defines the term relevant evidence as "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 is consistent with the standard of relevance generally applied in arbitration hearings.

Opinion among arbitrators is divided regarding whether the relevancy requirement should be relaxed in certain circumstances to allow the arbitration hearing to serve therapeutic purposes. The West Coast Tripartite Committee of the National Academy of Arbitrators has stated:

On occasion, evidence will be proffered which recognizably has no probative value but which should nonetheless be admitted, because to exclude it would be too damaging to confidence in the efficacy of the grievance procedure among unsophisticated participants in the arbitration. Some call this therapy evidence, and we are willing to admit it so long as the therapy itself does not become traumatic.

BNA, Problems of Proof in Arbitration at 164.

§ 11.3-2 Evidence of Prior Crimes, Wrongs, or Acts

OEC 404(3) states that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." However, the rule goes on to provide an exception to the general rule against character evidence if the evidence is offered for another purpose: "It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." OEC 404(3). But see OEC 404(4) (discussed below); State v. Williams, 357 Or 1, 346 P3d 455 (2015) (discussed below); State v. Baughman, 361 Or 386, 393 P3d 1132 (2017) (discussed below). For example, in federal courts, prosecutors often introduce evidence in drug cases that the defendant sold drugs on another occasion to prove that the defendant intended to sell the drugs found on his or her person.

In State v. Johns, 301 Or 535, 544, 725 P2d 312 (1986), superseded by statute as stated in Williams, 357 Or 1 (2015), the Oregon Supreme Court held that the permissible uses of prior-bad-act evidence are not limited to the purposes listed in the rule. Evidence of other, uncharged misconduct may be offered for any relevant purpose other than to show that the person acted in accordance with his or her character or propensity.

Evidence offered under OEC 404(3) nonetheless may be excluded if its probative value is substantially outweighed by its prejudicial effect. See OEC 403. See also Williams, 357 Or at 5-14. OEC 404(3) is, therefore, discretionary, because it provides only that the evidence "may" be admitted.

In Johns, the Oregon Supreme Court adopted a five-part test for determining whether evidence of other crimes, wrongs, or acts should be admitted: (1) the need for the evidence; (2) the certainty that the other crime, wrong, or act was committed by the defendant; (3) the strength of the...

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