Chapter 4 401 Definition of Relevant Evidence

• Library: Evidence Guide 2003

§401 Definition of “relevant evidence”

§402 Relevant evidence generally admissible; irrelevant evidence inadmissible

§403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
(including issues of demonstrative evidence)

§404 Admissibility of character evidence to prove conduct; proof of other crimes, wrongs, or acts; proof of character of victim

§405 Methods of proving character

§406 Habit; routine practice

§407 Subsequent remedial measures

§408 Compromise and offers of compromise

§409 Payment of medical and similar expenses

§410 Inadmissibility of pleas, plea discussions,
and related statements

§411 Liability insurance

§412 Sex crime cases; relevance of victim’s past conduct

§413 Evidence of similar crimes in sexual assault cases

§414 Evidence of similar crimes in child molestation
cases

§415 Evidence of similar acts in civil cases concerning
sexual assault or child molestation

§416 Proof of happening of similar occurrence, representation, or transaction or the absence thereof

§417 Evidence of results of experiment

§418 Scientific evidence

§401 Definition of “Relevant Evidence”

“Relevant evidence” means 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.

Notes

Prima facie admissibility exists as to evidence that logically tends to support or establish a fact in issue between the parties. The standard to determine the probative worth of an item of evidence is whether the desired inference is rendered more probable or less probable than in the absence of the evidence. McIlroy v. Hamilton, 539 S.W.2d 669, 676 (Mo. App. E.D. 1976); State v. Skillicorn, 944 S.W.2d 877, 891–92 (Mo. banc 1997); Biener v. St. Louis Pub. Serv. Co., 160 S.W.2d 780, 783 (Mo. App. E.D. 1942) (quoting 3 Burr W. Jones, Commentaries on the Law of Evidence § 587 (1913) (“If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other certain or more probable.”).

§402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as provided by law.

Notes

All facts and circumstances that are relevant to the issues of the case are admissible unless exclusion is required by some principle of evidence. See McFadden v. McFadden, 509 S.W.2d 795, 798 (Mo. App. E.D. 1974).

Admissibility predetermined by statute

Admissibility of certain types of proof is predetermined by statute:

1. Paternity Suits: Generally. Section 210.836, RSMo 2000 (evidence of sexual intercourse between alleged father and the mother during possible time of conception, expert opinion on paternity based on duration of pregnancy, blood test results, and medical and anthropological evidence based on tests performed by experts all declared relevant)
2. Paternity Suits: Access to Mother. Section 210.839.2, RSMo 2000 (testimony about sexual access to mother at times other than probable period of conception inadmissible)
3. Paternity Suits: Access to Mother—Notice Required. Section 210.839.3, RSMo 2000 (party that calls witness to testify as to that witness’s sexual intercourse with the mother must have made good faith effort to comply with statutory notice requirement; failure to comply results in witness being considered incompetent to testify). See §601(b), infra
4. Criminal Proceedings: Closure of Records. Section 610.120, RSMo 2000 (records of an arrest that does not result in filed charges or where charged and nolle prossed, dismissed, or resulting in acquittal or suspended imposition of sentence are closed and only accessible for certain purposes). See State ex rel. Thurman v. Franklin, 810 S.W.2d 694 (Mo. App. S.D. 1991); see also §501, infra (as to “privileged).”
5. Workers’ Compensation: Injured Employee’s Statement to Employer. Section 287.215, RSMo 2000 (employee’s statements are inadmissible if employer or insurer fails to provide employee or the employee’s representative with a copy of the statement within fifteen days of a request by certified mail). See Erbschloe v. Gen. Motors Corp., 823 S.W.2d 117 (Mo. App. E.D. 1992)
6. Receiving Stolen Property: Proof of Knowledge. Section 570.080.2, RSMo Supp. 2002 (defendant’s knowledge that property was stolen may be shown by evidence: (1) of having been found in possession or control of other property stolen on separate occasions from two or more persons; (2) of having received other stolen property within the year preceding the transaction charged; or (3) of having acquired the property for a consideration known to be “far below its reasonable value”)
7. Testimony Comparing Disputed Writing to “Genuine” Exemplar. Section 490.640, RSMo 2000 (comparison of a disputed writing proved to the satisfaction of the judge to be genuine “shall be permitted to be made by witnesses, and the writings and the evidence of witnesses respecting them may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute”)
8. Crime Lab Report: At Preliminary Hearing. Section 544.376, RSMo 2000 (“At any preliminary hearing conducted in the state, a report from any crime laboratory in the state, or from any federal crime laboratory, relating to the testing, analysis, identification, or comparison of evidence and certified under the seal of that laboratory shall be received into evidence on the issue of the results of scientific tests”—subject to requirement of notice and right to interview person who conducted test).
9. Intoxication Test Results. Section 577.037.1, RSMo Supp. 2002
   (“Upon the trial of any person for violation of any of the provisions of section . . . 577.010 or 577.012, or upon the trial of any criminal action or violations of county or municipal ordinances . . . arising out of acts alleged to have been committed by any person while driving a motor vehicle while in an intoxicated condition, the amount of alcohol in the person’s blood at the time of the act alleged as shown by any chemical analysis of the person’s blood, breath, saliva or urine is admissible in evidence and the provisions of subdivision (5) of section 491.060, RSMo, shall not prevent the admissibility or introduction of such evidence if otherwise admissible.”).
10. Refusal to Submit to Blood Alcohol Test. Section 577.041, RSMo Supp. 2002 (“If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuses upon the request of the officer to submit to any test allowed under section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to section . . . 577.010 or 577.012 [DUI or driving with excessive blood alcohol content]. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person’s license shall be immediately revoked upon refusal to take the test.”); see also State v. Cox, 836 S.W.2d 43 (Mo. App. S.D. 1992) (inapplicable in manslaughter proceeding).
11. Paternity Suits: Proof of Paid or Unpaid Bills. Section 210.839.6, (“Copies of any paid or unpaid bill for pregnancy, childbirth or genetic testing shall be admitted as evidence without requiring third-party foundation testimony if such copies have been provided to all parties not less than seven days prior to trial.”).

11. Paternity Suits: Blood Test Chain of Custody Proof. Section 210.834.5, RSMo 2000, provides:

Certified documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish such chain of custody. An expert’s report shall be admitted at trial as evidence of the test results stated therein without the need for foundation testimony or other proof of authenticity or accuracy, unless a written motion containing specific factual allegations challenging the testing procedures, the chain of custody of the blood or tissue specimens, or the results has been filed and served on each party, and the motion is sustained by the court or an administrative agency not less than thirty days before the trial.

13. Intoxication Tests: Videotape of Test. Section 577.020.7, RSMo Supp. 1999, provides:

Any person given a chemical test of the person’s breath pursuant to subsection 1 of this section or a field sobriety test may be videotaped during any such test at the direction of the law enforcement officer. Any such video recording made during the chemical test pursuant to this subsection or a field sobriety test shall be admissible as evidence at either any trial of such person for either a violation of any state law or county or municipal ordinance, or any license revocation or suspension proceeding pursuant to the provisions of chapter 302, RSMo.

14. Voluntary Intoxication, When Offered to Prove “Lack of Culpable Mental State.” Section 562.076.3, RSMo 2000; see State v. Rhodes, 988 S.W.2d 521, 525–25 (Mo. banc 1999) (approved exclusion of evidence of “voluntary intoxication” proffered as proof of “mental state” at the time of the charged crimes); Montana v. Egelhoff, 518 U.S. 37 (1996) (upheld constitutionality of Montana statute, over contention per se rule deprives a defendant of right to present evidence of innocence)).

15. Intoxication Tests: When Administered by Member of State Highway Patrol. Section 577.021, RSMo Supp. 2002 (a chemical test administered to a person suspected of operation of a vehicle while intoxicated “shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood...