Rule 401 Definition of "Relevant Evidence."

• Jurisdiction: Arizona

"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.

Comment

This rule speaks to relevancy in general. The threshold question the trial court must decide when considering the admissibility of any evidence is whether the evidence, in any manner, aids the trier-of-fact in resolving the case.[1] An item of evidence is relevant if it bears some relationship to a matter properly provable in the case. The fact to be proved may be ultimate, intermediate, or evidentiary, so long as it is of consequence to the determination of the action. The standard used in making this determination is one of probability. If the evidence has "any tendency" to make the existence of "any fact . . . of consequence" "more probable or less probable" than without the evidence, the evidence is "relevant." As such, this is a very liberal definition, defining as wide a range as possible of evidence as "relevant."[2] Moreover, under Arizona law, there is no difference in the weight given to direct and circumstantial evidence.[3]

Rule 402 provides that all relevant evidence is admissible unless some provision of the federal or state constitution, a state statute, or another rule excludes it. Pursuant to this, Rule 403 gives the trial court the power to exclude relevant evidence if it would cause unfair prejudice, confuse the issues, mislead the jurors, or unduly delay the proceedings.

This rule makes no reference to "materiality." Under former evidence theory, evidence was material if it addressed an issue in the case, and was relevant if it tended to establish the proposition for which it was offered; these two concepts are now covered by relevancy under the modern rules of evidence.[4] Thus evidence is either "relevant" or "irrelevant."

It is the responsibility of the trial court, pursuant to Rule 104(a), to determine whether evidence is relevant and thus admissible.[5] In some cases, however, evidence would be relevant only if certain facts are true, and those facts may be in dispute. For example, evidence of a verbal statement giving notice to the defendant would be admissible only if the defendant in fact heard the statement. This is an example of conditional relevancy, which is governed by Rule 104(b). In such a situation, it is not for the trial court to determine whether the defendant did or did not hear the statement; the extent of the trial court's inquiry is limited to determining whether the party has presented sufficient admissible evidence from which the jurors could conclude by a preponderance of the evidence that the defendant did hear the statement.[6] If the proponent makes this showing, the trial court should admit the evidence of the statement, and let the jurors determine whether or not the defendant heard it.[7]

This same standard used in determining whether direct evidence is admissible applies in determining whether impeachment and rehabilitation evidence is admissible.[8] When a witness testifies about the existence of certain essential facts, if the impeachment or rehabilitation evidence has a direct bearing on credibility and therefore makes the existence of these facts "more probable or less probable," the impeachment or rehabilitation evidence is then relevant and admissible. This is the concept used by the courts in the traditional rule that a party could not impeach a witness on collateral matters.[9] This evidence may be in the form of testimony, both from observation or in the form of opinion, about the witness's physical or mental condition affecting the witness's ability to perceive an event, remember it, and relate it at trial,[10] or testimony about specific acts of conduct showing bias, prejudice, interest, or corruption,[11] or testimony about specific acts of conduct inconsistent with the witness's trial testimony. Once the trial court determines that the impeachment or rehabilitation evidence is relevant, if the opposing party objects under Rule 403, the trial court must then determine whether it should nonetheless exclude the evidence.

Negative evidence presents a particular problem. Testimony by a witness that he or she did not see or hear an event happen could mean either the event did not happen, or it could mean the event happened, but the witness did not see or hear it. Thus, negative evidence is admissible only if the party offering it establishes that the witness was in such a position or situation that the witness would have seen or heard it if it had happened.[12] For example, evidence of the nonexistence of prior accidents is relevant, but only if the proponent shows that the proponent was in such a situation or had access to information that would have made the proponent aware of any accidents if they had happened. Evidence that another person may have committed the crime is relevant, but only if the evidence has an inherent tendency to connect the other person with the actual commission of the crime, and is something more than vague suspicion.[13] Similarly, evidence that a party did not call a certain person as a witness is relevant if (1) the person was under the exclusive control of that party, (2) the party would be expected to produce the person if that person's testimony would be favorable to that party, and (3) the person had exclusive knowledge of the existence or nonexistence of certain facts.[14]

A model or evidence of an experiment could be offered either as an attempted replication of the litigated event, or merely as a demonstration. If a party offers the experiment or model as an attempted replication of the litigated event, the conditions in the experiment or the model must substantially match the circumstances surrounding that event; if the experiment or model is not a purported replication but is more in the nature of a demonstration, it is appropriately admitted if it fairly illustrates a disputed trait or characteristic.[15]

Civil Cases

401.civ.010 For evidence to be relevant, it must satisfy two requirements, the first of which is the fact to which the evidence relates must be of consequence to the determination of the action.

Rossell v. Volkswagen of Am., 147 Ariz. 160, 709 P.2d 517 (1985) (even though trial court granted directed verdict on strict liability theory for car's propensity to roll over and for defective design of heater and its propensity to introduce carbon monoxide into passenger compartment, evidence about roll-over danger and carbon monoxide was relevant to theory of negligence in design of battery location and restraint).

Elia v. Pifer, 277 Ariz. Adv. Rep. 8, ¶¶ 35-36 (Ct. App. Sep. 3, 1998) (defendant was plaintiff's former attorney in dissolution action; after dissolution, plaintiff filed for bankruptcy; plaintiff sued defendant for legal malpractice, claiming defendant did not have authority to agree to terms of proposed settlement agreement; court held that plaintiff's claim of malpractice placed in issue communications with bankruptcy attorneys because, if plaintiff never told them defendant settled dissolution without his approval, it would give rise to inference that defendant had not committed malpractice, and if plaintiff had told them and they failed to follow his instructions to attack dissolution decree in bankruptcy proceedings, they might be negligent, which would reduce defendant's share of the liability).

State v. Wells Fargo Bank, 276 Ariz. Adv. Rep. 4, ¶¶ 35-37 (Ct. App. Aug. 20, 1998) (in severance damages action resulting from state's building freeway next to defendant's property, expert testimony about noise levels produced by persons driving related to issue that was of consequence to determination of action).

Conant v. Whitney, 190 Ariz. 290, 947 P.2d 864 (Ct. App. 1997) (plaintiffs were injured when they ran into a bull owned by defendant; evidence that Forest Service land on which defendant had a grazing permit did not permit bulls was relevant to plaintiffs' claim that a duty to keep bulls out of the area imposed no more of a burden than Forest Service already imposed, that defendant knew keeping bull out of area was necessary for public safety, to rebut inference that Forest Service was at fault for not prohibiting bulls in this area, and to define defendant's contractual undertakings and responsibilities in relation to that of the Forest Service).

Hutcherson v. City of Phoenix, 188 Ariz. 183, 933 P.2d 1251 (Ct. App. 1996) (victim in wrongful death action was player for Phoenix Cardinals; because evidence showed that victim intended to support mother, his future income was relevant to mother's damages).

Miel v. State Farm Ins. Co., 185 Ariz. 104, 912 P.2d 1333 (Ct. App. 1995) (in suit for bad faith in failing to settle insurance claim, asking company's representative whether he was aware of other cases when company had been held responsible for excess liability judgments was relevant to plaintiff's claim that her case was not isolated incident), rev. dismissed, 186 Ariz. 370, 923 P.2d 836 (1996).

Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (Ct. App. 1987) (application for birth certificate was filed one day after two telephone calls between wife and her parents (defendants herein), and thus was probable link in chain or process of wife's disappearance with plaintiff's child).

L.B. Nelson Corp. v. Western Am. Fin. Corp., 150 Ariz. 211, 722 P.2d 379 (Ct. App. 1986) (because plaintiff alleged defendant was unjustly enriched by foreclosing on plaintiff's property, evidence of cost of funds defendant borrowed to lend to plaintiff was relevant).

Continental Tel. Co. v. Blazzard, 149 Ariz. 1, 716 P.2d 62 (Ct. App. 1986) (even though document did not create easement because it was never recorded, it was relevant to question whether defendants had any colorable justification for entering property in order to lay buried telephone cable).

DeForrest v. DeForrest, 143...