§ 9.04 Admissibility of Relevant Evidence: Rule 402
| Jurisdiction | United States |
Rule 402 is the general provision governing the admissibility of evidence: relevant evidence is admissible in the absence of a rule of exclusion, and irrelevant evidence is inadmissible. For present purposes, the most important part of Rule 402 is the phrase "these rules." This language allows relevant evidence to be excluded by operation of some other rule of evidence. A number of exclusionary rules are found elsewhere in the Rules of Evidence. For example, Rule 403 permits the exclusion of evidence whose probative value is substantially outweighed by the risk of unfair prejudice, confusing issues, or misleading the jury. Other illustrations found in Article 4 of the Rules include evidence of subsequent remedial measures,40 offers of compromise,41 payment of medical expenses,42 certain types of pleas and offers to plead guilty in criminal cases,43 and liability insurance.44 Examples in other Articles include rules on privilege,45 witness competency,46 firsthand knowledge,47 hearsay,48 authentication,49 and best evidence.50
In sum, evidence may meet the relevancy standard of Rule 401 but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision of the Rules of Evidence.
[A] United States Constitution
Many constitutional rights are enforced through judicially created exclusionary rules. For example, evidence seized in violation of the Fourth Amendment51 (search and seizure) or the Due Process Clause is subject to exclusion.52 Similarly, statements obtained from criminal defendants in violation of the privilege against self-incrimination,53 the right to counsel,54 or due process55 are subject to exclusion. Evidence of pretrial identifications obtained in violation of constitutional rights may also be excluded; these rights include the right to counsel56 and due process.57 Moreover, the Sixth Amendment right of confrontation may preclude the admission of otherwise admissible evidence—for example, hearsay.58
[1] Incorporation Doctrine
These exclusionary rules also apply in state trials. In a series of decisions during the 1960s, the Supreme Court applied most of the criminal procedure provisions of the federal Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment.59 The Fourth Amendment exclusionary rule was extended to state trials,60as was the Fifth Amendment's privilege against self incrimination,61 and the Double Jeopardy Clause.62 All the Sixth Amendment protections were made applicable: right to a jury trial,63 right of confrontation,64 right to compulsory process,65 the right to a speedy trial66 by an impartial jury,67 and the right to counsel.68 Finally, the Cruel and Unusual Punishment Clause of the Eighth Amendment was applied to state trials.69
The only two provisions that were not "incorporated" through the Fourteenth Amendment were the right to a grand jury indictment and the prohibition against excessive bail. The Court, however, in Schilb v. Kuebel70 commented: "Bail, of course, is basic to our system of law and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment."71Thus, the application of federal constitutional law in state criminal cases has become commonplace.
[2] Right to Present a Defense
The Supreme Court has also recognized a constitutional right to introduce defense evidence under limited circumstances. In Washington v. Texas,72 the Court struck down a witness disqualification rule as violative of the Sixth Amendment right to compulsory process: "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies."73 In Chambers v. Mississippi,74 the Court held that the combined effect of Mississippi's voucher rule and hearsay rule precluded the admission of critical and reliable defense evidence and thus violated due process.75 Similarly, in Holmes v. South Carolina,76 the Court held that a defendant's constitutional rights were violated by an evidence rule that precluded the admission of proof of third-party guilt if the prosecution had introduced forensic evidence that, if believed, strongly supported a guilty verdict. In sum, the Constitution may require the admission of evidence despite an evidence rule.
[3] Federalism
The United States Supreme Court has no authority to review state evidentiary rules in the absence of a federal constitutional or statutory issue.77
[B] Federal Statutes
Some federal statutes exclude evidence.78 For example, the federal wiretap and eavesdropping statute explicitly states that evidence obtained in violation of that statute is inadmissible in any court, state or federal.79
[C] Other Procedural Rules
Relevant evidence may also be...
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