§ 9.03 "RELEVANCY" DEFINED

• Jurisdiction: North Carolina

§ 9.03. "RELEVANCY" DEFINED

The terms relevance and probative value are used synonymously in evidence law. The following questions all address relevancy: Does the evidence further the inquiry? Does it advance the resolution of trial issues? Does the evidence throw light on these issues? However, the Federal Rules use a precise definition of relevancy. Rule 401 defines "relevant evidence" as evidence having any tendency to make the existence of a material or consequential fact "more or less probable than it would be without the evidence."¹⁸

Rule 401's standard does not require that the evidence make a consequential (material) fact "more probable than not" (preponderance of evidence), but only that the material fact be more probable with the evidence than without the evidence. For example, in a homicide case, the prosecution may proffer evidence showing a motive (e.g., defendant had an affair with the victim's spouse). Such evidence, by itself, does not establish that it is more probable than not that the defendant committed the crime. The evidence does, however, satisfy the standard of Rule 401: one could conclude that, with the motive evidence, it is more probable that the defendant committed the crime than without the motive evidence.

Example. Suppose fresh blood is found at a murder scene that shows signs of a violent struggle. The blood type at the scene is "AB", and the victim's type was "O." In the ABO system, the blood types by population are:

A = 42 % B = 10 % AB = 3 % 0 = 45 %

FIGURE 9-2

Is the evidence relevant — i.e., more probative with the evidence than without it? Yes. If the population were one million, there would be 30,000 people with type AB. Yet, the evidence is still relevant. Even if the crime scene blood type was "O" (victim was type A), the evidence is relevant. The evidence excludes a large number of people as the possible assailant (those with types A, B, or AB), even though we are still left with a large group (type O). Stated in Rule 401 terms: The blood type evidence tends to make the existence of a consequential (material) fact, i.e., the murderer's identity, more probable with the evidence than without it.

Lax standard. Rule 401 embraces a very low standard.¹⁹ For instance, if we know that a bank robber was a white male, each of those facts individually is relevant under Rule 401. By excluding females, we advance the inquiry. By excluding non-Caucasians, we advance the inquiry. As discussed below, however, the probative value of some evidence may be so marginal that courts will exclude it under Rule 403, even though it satisfies Rule 401's standard.

[A] Admissibility vs. Sufficiency

As the above discussion suggests, there is a difference between relevancy (admissibility) and sufficiency.²⁰ Although the evidence as a whole must be sufficient to satisfy a party's burden of production and thus send the issue to the trier of fact,²¹ each item of evidence need only advance the inquiry.²² Think of it this way: You can only call one witness at a time, and each witness need not hit a home run; you can score by hitting three singles, or a double and a single.

The federal drafters cited McCormick's metaphor to capture this point: "A brick is not a wall."²³ Assume a murder prosecution (e.g., victim shot in his bedroom) in which the prosecution introduces the following evidence one item at a time: (1) motive (e.g., defendent's affair with victim's spouse); (2) the accused was observed near the murder scene at the approximate time of death (i.e., opportunity); (3) the accused threatened the victim a week before the crime; (4) the accused bought a gun two days prior to the murder; and (5) the accused's fingerprints were found in the bedroom. Motive (item 1) is relevant but by itself would not be sufficient to convict beyond a reasonable doubt. However, the fingerprints (item 5) might be sufficient if we could determine when they were left or if the accused claims that he has never been in the bedroom. This example illustrates another point: each "brick" is not the same size. Some items of evidence are more probative than others. Moreover, in a civil case, the "wall" is not as high.

FIGURE 9-8

[B] Basis for Relevancy Determination

In determining relevancy, the trial judge must depend on logic, as informed by experience or science.²⁴ In assessing the relevance of "motive," the judge relies on her life experiences. Of course, different judges possess different life experiences, and sometimes counsel, through argument or an offer of proof, will need to educate the judge on why the evidence is relevant.

The reference to "science" takes account of situations in which a court must rely on expert testimony to discern the relevance of proffered evidence. For example, evidence that a defendant's blood type matches the type found at the crime scene is relevant only because scientific research has demonstrated that the general population can be classified according to ABO blood types.

The judge does not consider the credibility of witnesses when making relevancy determinations. The judge determines the probative value of evidence as "if true."²⁵

[C] Direct and Circumstantial Evidence

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