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

CHAPTER I: RELEVANCE
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C. Conditional Relevance (28)

Problem-The Rim (28)

The point:

Relevance is a functional concept. Relevance decisions depend on the context in which they arise and the use that is to be made of the evidence in question.

Answer and Analysis:

The idea that relevance depends on fulfillment of a condition of fact has serious implications for the concept of relevance and raises serious questions of the "horse before the cart" variety. Imagine the investigator when he first goes to the scene of this accident. He walks in the surrounding fields looking for evidence that will help him figure out what happened. He picks up a popsicle stick in the field. Is it relevant? He cannot imagine any connection it could have to the accident and discards it: irrelevant. He picks up a headlight rim. Is it relevant? He can imagine connections to the accident. He also recognizes that it might (turn out to) have nothing to do with the accident. Is it relevant? From his point of view, knowing what he knows at that time, it is relevant to what he is doing. He puts it in a plastic bag and adds it to the assemblage of evidence the significance of which he will explore further in trying to figure out what happened. The rim may, of course, turn out to be irrelevant, but only in a different context in which he knows things he does not know out there in the field.

Is a different concept of relevance applied in the court? The concept of conditional relevance risks the misunderstanding that somehow the judge must in some sense know everything before she can decide that anything is relevant. To be more precise, using the language of the rule, there must be evidence sufficient to support a finding of relevance with respect to every fact that could vitiate the relevance of the rim. Is the rim from a '73 Chevy? Is it from this '73 Chevy? Is the '73 Chevy missing a rim? Was it missing a rim before the accident? Invention will produce a regress of such questions. Moreover, introducing evidence on such questions does not solve the problem, because that evidence also poses a relevance problem. Such evidence (let us say, for example, that the car was missing a rim before the accident) is apparently relevant only if we already know a good deal about the finding of the rim in the field and the possible relationship of that to figuring out what happened in the accident.

FRE 104(b) talks about "when the relevancy of evidence depends upon the fulfillment of a condition of fact." Does the relevancy of the rim depend upon a condition of fact? If so, the concept of relevancy in the Rules is that each item of evidence must not only link in a logical chain to the proof of a material issue, there also must be evidence on every link sufficient to support a finding that the link is established in a way that keeps the piece of evidence in the logical chain. This is a concept of relevance very different from the relevance concept that the investigator would apply.

Which view of relevance is right? Should the court insist on proof that a rim on C's car is missing? If the Rule 104(b) view of relevance is right, how can a judge know if something is relevant without seeing everything? Should she "admit the evidence subject to being connected up" or leave the pointing out of the missing links to the adversary process?

The judge should apply something like the investigator's standard, with the extent of the foundational connection questions determined by the use which is to be made of the evidence (considerations of materiality, remoteness, efficiency and prejudice) rather than by an abstract concept of relevance. Yet, the judge is in a different situation from the investigator in the field. The judge has an alternative to picking up the rim or not picking it up: she can ask counsel what the evidence is being offered to prove and what evidence exists to link the offered evidence to the issues in the case. This allows the judge to peek ahead into the future when making her ruling on an item of evidence, as compared to the investigator who can only rely on what he already knows in judging relevance. The judge can reasonably demand that the proponent of evidence have evidence that is sufficient to support a finding that the evidence is relevant to the issue before the court. Moreover, when the evidence is going to be used as a predicate to extensive expert testimony, the judge should require greater connection before allowing plaintiff to proceed. The Romano case (30) is an example of this.

Relevance, then, depends on what we want to do with the evidence, and how much trouble we are going to go to in doing it. Considerations of time and efficiency are important here. For example, whether we want to take up time with marginal expert testimony without further firming up the connection, as the court was concerned about in the Romano case (pp. 30-34), is a Rule 403 judgment. As pointed out below, the Romano court could have easily reached the same result applying FRE 104 and FRE 403, if the court believed the prejudicial effect of the expert's testimony outweighed its probative value.



Romano v. Ann & Hope Factory Outlet, Inc. 417 A.2d 1375 (R.I. 1980)(54)

This case illustrates the connection between the concept of relevance and the functional question of what is going to be done with the evidence.

In truth, the federal rules do provide for judicial control over this type of evidence. Whenever the conditions of an experiment depart enough from the real event so that the trial judge believes that introduction of evidence of the experiment and rebuttal evidence will consume undue time, confuse the issues or mislead the jury, the judge may exercise discretion under Rule 403 and exclude it on this basis.

This approach could have been applied in Romano to reach the same result. Under the Rules, the court could concede that the condition of the brake chamber was a Rule 104(b) question for the jury, but still exclude the evidence under Rule 403 on the grounds that, given the problems with the chain of custody of the bicycle, the evidence would confuse the jury or, alternatively, that its probative value was substantially outweighed by the danger of unfair prejudice.

Does it make any difference which approach is used to get to the same result? Perhaps not, but we believe that consistent application of the Rules' framework of relevancy (FRE 401), conditional relevancy (FRE 104(b)), and the probative/prejudice weighing (FRE 403) will lead to greater consistency in results and theory.

In an interesting article on this subject, Professor Ball argues that "(1) the received learning of the doctrine of conditional relevancy is erroneous, being based from the start on an incorrect analysis of relevancy; (2) the doctrine is inconsistent with the definitions of relevancy adopted in the . . . Federal Rules of Evidence; (3) the attempts, as in Federal Rule 104(b), to provide an escape from the consequences the doctrine might have if it were correct, have done more harm than good to the body of the law of evidence." Ball, The Myth of Conditional Relevancy, 14 GA. L. REV. 435 (1980).

Professor Ball's analysis has been the subject of considerable debate among evidence scholars. An example of this literature is:

Nance, Conditional Relevance Reinterpreted (36)

This relatively long excerpt from Professor Nance's views on conditional relevance as of 1990 relates the history of theoretical thinking on conditional relevance and attempts to liken the doctrine to one of preference for the "best" evidence. The article demonstrates that conceptualization of notions of relevance can produce relatively artificial structures which have a certain orderly appeal, but which may not actually embody a sound policy core.

The functional nature of relevancy (and the different meaning of that term at various stages of a dispute) is discussed further in the Appendix to this chapter of the Teaching Manual--The Mysterious Disappearance of Judge Crater.

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