Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. Logical Relevance (16)

Hart & McNaughton, Evidence and Inference in the Law (16)

In this famous article, Professors Hart and McNaughton offer a valuable perspective on the interrelationship of substantive legal rules of evidence within the legal process. They explain the difference between legal proof and proof in other contexts, such as scientific proof. As Wigmore points out, we must not lose sight of the differences between art and science on the one hand, and the use of art and science in law, on the other.

This short excerpt highlights some of the characteristics of the Anglo-American system of evidence that are often taken for granted. The full article challenges some of the most strongly held assumptions concerning specific rules of evidence, such as the rule excluding relevant hearsay evidence.

Some of the issues raised by Hart and McNaughton, Ayer (17) and Russell (20) which should be kept in mind during the remainder of the course include:

1. Is truth the goal of the justice system?

2. Is certainty the goal of the justice system?

3. Is justice the goal of the justice system?

4. Is stability the goal of the justice system?

5. Are truth, certainty, justice or stability promoted or retarded by our system of evidence and procedure?

6. What other values does or should our system of evidence and procedure promote?

7. What improvements can be made to our system of evidence and procedure?

Note: On Principles of Reasoning (17)

A.J. Ayer, Hume's Formulation of the Problem of Induction

B. Russell, On Induction

G. James, Relevancy, Probability and the Law

This brief treatment of inductive and deductive logic aims to provide students with a very basic understanding of these two modes of reasoning and to raise questions about proof in court versus scientific proof. Rather than lecturing directly on this material, you may simply want to point out in connection with some of the problems the form of reasoning used by students in answering.

Another view of the same subject treated by James (23) is provided by Lempert, Modeling relevance, 75 MICH. L. REV. 1021 (1977). The seminal work on this subject, of course, is Thayer, Preliminary Treatise on Evidence 264-266 (1898).

The answer to the parable of the Cougars and the Lynx (22) is that the third person was a Cougar. The reasoning is wholly deductive and goes like this:

The first inhabitant could not say he was a Lynx because, if he were, he would have to say he was a Cougar (Lynxes always lie), and if he were a Cougar, he would have to say he was a Cougar (Cougars always tell the truth). So, the first person had to say, "I am a Cougar." This means that the second inhabitant lied when he said that the first person said he was a Lynx. The second person must therefore be a Lynx (liar). Thus, the third person spoke the truth when he called the second person a liar. Accordingly, the third person must be a Cougar (truthteller).

The answer to the second riddle (top of page 23) is more complicated and depends on more than deductive reasoning. It requires an ability. to change perspectives -- to put yourself in the position of the other players and imagine what they are seeing while at the same time keeping in mind what you are seeing. Demonstrating this in class is best done by getting three students to put on red and white beanies in turn. The key to the riddle is that all of the players are extremely smart. All of them raise their right hands, yet none lower their hand and rise with the answer for some time. This is the clue for the wisest of the three wise players, who can use the indecision of the other players as a clue as to what they must be seeing. It is only after the other two players keep their hands up for some period of time can the wisest player figure out what they must be seeing.

In more elegant fashion, Professor Nesson provides this succinct answer: This problem trains the mind to see from a second point of view. Each woman sees at least one red beanie (actually each sees two), so all raise their hands. Our heroine reasons, "If my beanie is white, then each of the other women must be seeing one red, one white. They are smart. They would immediately deduce that the beanie on their own heads is red. Since neither has made that deduction the premise must be wrong. Therefor my beanie is not white but red.

Problem - The Burned Butt (26)


Problem - Beer Cans in the Car (26)

The point:

Since relevance depends on the "world-view" of the person making the judgment about relevance, the standard for admissibility (absent any potential for prejudice) should be one with a very low threshold that evidence must cross to be considered relevant. This standard, stated nonprobabilistically, should be: would a reasonable person want to look at the evidence before deciding the issue before him? This, essentially, is the standard of FRE 401.

Answer and Analysis:

With regard to the burned butt, the presence of a slightly burned cigarette in P's car does not "prove" that P was trying to light a cigarette at the time of the accident, or even that P was smoking at the time. This evidence alone certainly does not make it more probable than not even that P is a smoker. Even if the butt had been found on the floorboards of P's car immediately after the accident and before anyone else would have had a chance to drop the butt there, it would not make any of these propositions more probable than not. But this is not the test of relevance adopted by the federal rules.

The problem with the burned butt is one of remoteness between the time the evidence was found and the event in question. During the two days that passed between the accident and the finding of the butts, there probably were many opportunities for someone other than P to drop a butt on the floor. For example, this could have occurred during the towing of P's car. In the case on which this problem is based, Brewer v. Gainer, 264 N.C. 384 141 S.E.2d 806 (1965), the court held that it was error to admit this evidence.

But what if the butt had been found at the scene immediately after the accident? All it tends to establish is that someone had been smoking in the car. Nonetheless, a judge could conclude that under these circumstances the offered evidence makes the existence of the fact sought to be proved (in logic, the "probandum") more likely than without the evidence, and thus it is relevant under Rule 401's definition.

Interesting variations:

What if the cigarette that was found was a fulllength, unlit cigarette? What if the ashtray was full of burned butts?

The differences of opinion that these problems provoke demonstrate that application of Rule 401's standard is not as simple as it seems. If reasonable people can and do differ on the question of whether offered evidence makes the existence of the fact sought to be proved more or less likely than without it, what should the judge do? Who provides the relevant measure? The judge or a "reasonable jury'? What should the trial judge or a reviewing court take into account or bring to bear in making relevancy judgments? Logic? Experience? Local idiosyncrasies?

The beer cans problem can be used to develop these questions further. Whether the beer can makes a material issue more or less probable is largely indeterminate, since it depends on the individual perception of the world of the person making the judgment. What then is the relevance judgment that the judge must make at the point of deciding the admissibility of the evidence?

We believe that the correct question is: Would you want to look at the item of evidence if you embarked on the task of trying to figure out what happened? This does not mean that the item must be conclusive, or even that its significance must be obvious. Its significance may very well depend on what other items of evidence you are able to assemble. Yet the nature of the relevance judgment that a judge must make at the point of admissibility is that the judgment must be made without knowing the full context that will be provided by all other items of evidence (subject to the qualification that a judge has some means to "peek" ahead by asking an attorney what other proof he has). This is true for every piece of evidence. So the relevance judgment depends on a rough judgment about how an item of evidence might relate to a material issue, depending on what other items of evidence might be available to provide a context for considering the first,

A person hired to investigate the beer-can case who went to the scene to collect evidence, and who had to sort through all the items in and around the car, saving the things thought to be "relevant" to the investigation and ignoring the things thought to be "irrelevant," would of course have saved the beer can, whether it was empty or unopened. That, we believe, is the FRE 401 concept of relevance. This concept is not to be confused with the overlay of considerations of prejudice introduced by FRE 403. Nor should this concept of relevance be confused with the question of the sufficiency of the evidence to sustain a verdict (directed verdict question). In neither the burned-butt problem nor the beer-cans problem does it follow from the admissibility of the evidence that, assuming no further evidence, a verdict for the proponent of the evidence could or should be upheld.

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