Stretching Relevancy

JurisdictionColorado,United States
CitationVol. 22 No. 6 Pg. 1177
Publication year1993
22 Colo.Law. 1177
Colorado Lawyer

1993, June, Pg. 1177. Stretching Relevancy


Vol. 22, No. 6, Pg. 1177

Stretching Relevancy

by Fotios M. Burtzos

In the experience of many practitioners, the question of what is relevant evidence has as many answers as there are judges and opposing counsel. It often appears as though the concept of relevance is molded, on a case-by-case basis, by the whims of lawyers and judges. For example, the fact that all of a woman's teenage daughters developed drug problems while living with her may be relevant to one judge in a custody dispute, but not to another. The fact that a motorist drove a particular route to work most mornings might not be deemed relevant in a case in which the motorist is accused of robbing a store on that route on a non-workday. Moreover, the fact that it was 100 degrees in the room at the nursing home where an elderly individual signed a now-contested deed might be relevant to one judge, but not to another. Despite the myriad of seemingly contradictory rulings on relevance practitioners have encountered, there are rules defining relevant evidence.

This article provides an overview of the specific rules governing relevance [Colorado Rules of Evidence ("CRE") 401-411] and the case law interpreting them. The Federal Rules of Evidence ("FRE"), with minor exceptions, are identical to the Colorado Rules of Evidence.


"Relevant evidence" means evidence having a 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.(fn1) Generally, in Colorado, facts that logically tend to prove or disprove the fact in issue, afford a reasonable inference or shed light on the matter contested are relevant. However, facts collateral to or bearing so remotely on the issue that they afford only conjectural inference should not be admitted into evidence.(fn2)

Evidence that is circumstantial rather than direct has no effect regarding its relevance.(fn3) In addition, to be relevant, evidence does not need to be conclusive on an issue. It only needs to make the existence or non-existence of the issue more or less probable.(fn4) Evidence does not become irrelevant just because it is used to establish a fact through the use of a negative (e.g., using telephone directories to show that the repair shop at which a defendant claims he acquired a motor vehicle does not exist).(fn5)


In making a threshold determination about the relevance of some "evidence"(fn6) a practitioner wishes to use, or must confront, in an evidentiary proceeding (usually a trial), he or she should ask the following: "Is the fact of some consequence to an issue in this case?" If the answer is "no" (e.g., whether the fact that the plaintiff was wearing a blue suit when he signed a contract has any bearing on his damages), the evidence is irrelevant. If the answer is "yes" (e.g., whether the age of a decedent matters in a wrongful death case), the next question is logical relevancy; that is, whether the evidence makes the existence of a consequential fact more or less likely.(fn7)

By asking these questions about the evidence and balancing the relevant evidence against CRE 403 or other rules (discussed below), the practitioner generally should be able to determine its admissibility well in advance of trial. What is and is not relevant has been discussed in numerous appellate opinions. The following list is a sampler regarding specific issues.

1. Evidence of the defendant entering a restaurant two weeks before trial and then turning and leaving when he saw a witness was relevant to the identity issue.(fn8)

2. While the fact of a prior felony conviction is permissible for impeachment purposes, cross-examination on the details of the prior conviction is subject to the relevancy rules and is within the trial court's discretion.(fn9)

3. A question as to whether a defendant will be serving a sentence for a prior conviction is improper.(fn10)

4. The testimony of a doctor is relevant on the issues of lack of consent and the victim's reaction to force and threats.(fn11)

[Please see hardcopy for image]

Fotios M. Burtzos, Colorado Springs, is litigation counsel at Carla McCord Albers & Associates.


5. Evidence regarding the condition of a loading area is relevant to a negligent maintenance case.(fn12)

6. In the absence of any challenge to the authenticity of a letter or to the accuracy or method of translation from a foreign language to English, the only issue was the weight of the evidence, not admissibility.(fn13)

7. In a condemnation case, evidence of subsequent sales, if similar, is relevant to valuation.(fn14)

8. The wishes of relinquishing parents are relevant on the issue of placement of the child.(fn15)

9. The testimony of an attorney as to how fees were disbursed to a former partner was irrelevant in a fee dispute between the parties.(fn16)

10. An attorney's desk calendars could be relevant to show the time spent on a client's work in the absence of other records.(fn17)

11. Prior performance data on similar model cars may be relevant in collision cases, depending on the similarity of test conditions.(fn18)

12. Evidence of anticipated pay increases is relevant to a loss of earnings claim.(fn19)

Relevancy Conditioned On Fact

CRE 104(b) states:

[W]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

This rule allows a court preliminarily to determine whether a sufficient foundation has been laid to support a finding that the condition creating relevancy has been fulfilled. The policy behind the rule is to allow flexibility in the order of proof so as to avoid delay or confusion. An offer of proof that evidence supporting the finding that the condition creating relevancy has been fulfilled is required to be made by the trial counsel.(fn20)

Generally, this issue arises when a relevancy objection is made to testimony and counsel offering the testimony states to the court: "I'll tie up the relevancy of this line of questioning with the testimony of witness X, or with exhibit Y." Courts often allow the objected-to testimony (or exhibit) into evidence "subject to a showing of relevancy." If this occurs and the trial lawyer later fails to offer the evidence required to make the earlier evidence relevant, the admissibility of the earlier evidence can be withdrawn or it can be subject to a motion to strike by the opposing party.

Evidence can be admitted on the condition that the trier of fact ultimately determines that the condition of relevancy has been fulfilled. For example, an expert who testifies that he tested a certain engine for defects can be contradicted by someone who claims the expert tested the wrong engine. This conflict does not make the expert opinion inadmissible because, if the jury finds that the correct engine was examined, the evidence is relevant.(fn21)

The main points for the practitioner to remember regarding any attempt to introduce evidence that is conditioned on something else happening at trial are: (1) always make an offer of proof about what later evidence will be offered to fulfill the condition of relevancy for the initial evidence and (2) present the evidence to fulfill the condition of relevance.

CRE 104(b) interacts with other provisions of the Colorado Rules of Evidence and should be read in conjunction with them.(fn22) This is especially true regarding documentary evidence.

Admissibility of Relevant Evidence

CRE 402 states:

[A]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Colorado, by these rules, or by other rules prescribed by the Supreme Court, or by the statutes of the State of Colorado. Evidence which is not relevant is not admissible.(fn23)

This rule creates a presumption that relevant evidence is admissible, and places the burden on a party seeking to exclude such evidence to find some reason other than relevance for excluding it.(fn24) This may include the fact that the evidence is a privileged communication(fn25) (attorney-client, husband-wife, physician-patient) or that it is prejudicial.(fn26)

Moreover, in several areas of substantive law, there are a variety of statutes that restrict the admissibility of evidence, such as a statute prohibiting evidence of traffic tickets in civil cases or a rape shield statute.(fn27) Practitioners should review the statutes governing the area of law involved in their dispute carefully to ascertain whether a limiting statute exists. It is not enough to rely solely on the Rules of Evidence. However, the main point to remember is that once evidence is relevant, it is presumed admissible, and courts will follow the literal language of the rule.(fn28)

Prejudice, Confusion or Waste of Time

CRE 403 provides courts with broad authority to exclude any evidence, even relevant evidence, if its probative value would be outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or the repetitive presentation of cumulative evidence.

The main purpose of Rule 403 is to act as a filter through which relevant evidence may be excluded because it either does not add much to the proceeding or adds too much of something to the proceeding. This rule tries to balance the importance of the relevant evidence against the harm that might be caused by admitting it.

In general, there appears to be a presumption favoring the admissibility of relevant evidence since its probative value must be...

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