§ 9.10 Key Points

• Jurisdiction: United States

§ 9.10 Key Points

Relevancy is the most pervasive concept in evidence law. It is the threshold issue for all evidence. If evidence is not relevant, it should be excluded.

Rule 401

Rule 401 embraces two concepts: relevancy and materiality. To be admissible, evidence must be both relevant and material. However, instead of the term "material fact," Rule 401 uses the phrase "fact of consequence" in determining the action, which can be shortened to consequential fact. "Relevancy" describes the relationship between an item of evidence and the proposition it is offered to prove. In contrast, "materiality" describes the relationship between that proposition and the issues in the case—i.e., the consequential or material facts.

Materiality. With the exception of the credibility of witnesses,¹⁸⁵ the "consequential facts" in a particular case are a matter of substantive law—(1) the elements of a charged crime, (2) the elements of a cause of action, (3) the elements of an affirmative defense, and (4) damages in civil cases. The pleadings may remove some of these elements; for example, if the complaint alleges negligence and the answer does not deny negligence but asserts contributory negligence as a defense, negligence is off-the-table; it is no longer an issue in this case.

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." 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. Rule 401 embraces a very low standard.

Admissibility vs. sufficiency. There is a difference between relevancy (admissibility) and sufficiency. 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, each item of evidence need only advance the inquiry. A party 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."

Direct and circumstantial evidence. Problems of relevancy typically involve circumstantial rather than direct evidence. The distinction turns on the manner in which an item of evidence relates...