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|Types of evidence|
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Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove." Probative evidence "seeks the truth". Generally in law, evidence that is not probative (doesn't tend to prove the proposition for which it is proffered) is inadmissible and the rules of evidence permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel." A balancing test may come in to the picture if the value of the evidence needs to be weighed versus its prejudicial nature.
Under the Federal Rules of Evidence (United States)
Until the Federal Rules of Evidence were restyled in 2011, Rule 401 defined relevance as follows:
"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.
This definition incorporates the requirement that evidence be both material ("of consequence to the determination of the action") and have probative value ("having any tendency to make the existence of any [material] fact...more probable or less probable than it would be without the evidence"). The restyled Rule 401, however, separates these traditional concepts in order to make the rule clearer and more easily understood. The amended language essentially rewrites the rule as a test, rather than a definition, for relevance:
Evidence is relevant if:
Evidence and the matter properly provable
According to the notes of the Advisory Committee appointed to draft the Federal Rules of Evidence,
Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.
The United States Court of Appeals for the District of Columbia Circuit explains the concept of "matter properly provable" as follows:
The initial step in determining relevancy is therefore to identify the "matter properly provable." As Professor James explained in a highly-regarded article, '[t]o discover the relevancy of an offered item of evidence one must first discover to what proposition it is supposed to be relevant."
Relevance and admissibility
Generally, relevant evidence is admissible. However, relevant evidence is not admissible if prohibited by the Constitution, an Act of Congress, by the Federal Rules of Evidence, or by rules prescribed by the Supreme Court. Under the Federal Rules of Evidence, relevant evidence may be excluded on the basis of enumerated grounds.
Relevance is required but may not be sufficient
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
Irrelevant evidence is not admissible.
- the United States Constitution;
- a federal statute;
- these rules; or
- other rules prescribed by the Supreme Court.
Relevance is ordinarily a necessary condition, but not a sufficient condition, for the admissibility of evidence. For example, relevant evidence may be excluded if its tendency to prove or disprove a fact is heavily outweighed by the possibility that the evidence will prejudice or confuse the jury.
Inadmissible versus excluded evidence
FRE 402 refers to relevant evidence as 'inadmissible' if 'otherwise provided by' several sources of law. Yet, FRE 403 refers to 'exclusion of relevant' evidence. It is clear that evidence excluded under FRE 403 is inadmissible. However, it is not clear that inadmissible evidence is considered 'excluded' within the meaning of the Federal Rules of Evidence.
Exclusion of relevant evidence
Under Rule 403 of the Federal Rules of Evidence, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of one or more of the enumerated grounds for exclusion. The grounds for exclusion are:
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence
In an exemplary hypothetical; if 100 witnesses saw the same accident, and would each give roughly the same description of the event, the testimony of each would be equally relevant, but it would be a waste of time or a needless presentation of cumulative evidence to have all 100 repeat the same facts at trial.
Preservation of the issue
To preserve legal error for review, objections must be raised. Often objections against the introduction of evidence are made on the basis of relevance. However, the rules and opinions demonstrate that relevant evidence includes a significant portion of typically offered evidence. Since objections are required to be specific and timely, merely objecting on the basis of relevance, without more, may prevent the review of legal error on appeal. More particularly, making an objection based on “relevance” does not preserve an error based on Rule 403. Cases that lack specific and timely objections are sometimes referred to as having "poor records" because errors made by the lower court may not be reviewed on appeal.
Public policy concerns
A variety of social policies operate to exclude relevant evidence. Thus, there are limitations on the use of evidence of liability insurance, subsequent remedial measures, settlement offers, and plea negotiations, mainly because it is thought that the use of such evidence discourages parties from carrying insurance, fixing hazardous conditions, offering to settle, and pleading guilty to crimes, respectively.
The Canadian judiciary system utilizes the term "probative" which also signifies "prove to be worthy."
History of legal doctrine
In 1970 The Supreme Court of Canada was concerned with exclusionary discretion within the judicial system. In R. v. Wray the term “probative value” is used to explain that “judges in criminal cases do not have a discretion to exclude evidence because of how it was obtained.”
"The trial judge's discretion to exclude admissible evidence does not extend beyond his duty to ensure that the minds of the jury will not be prejudiced by evidence of little probative value, but of great prejudicial effect. Exclusion of evidence on the ground that, although its probative value was unquestionable, it was obtained by methods which the judge considers to be unfair, has nothing to do with his duty to secure a fair trial for the accused."
"...a judge must determine the value of the evidence based on reliability and the strength of the inference it led to, against the cost presented by such evidence, including things as diverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case."
- Hill, Gerald N., and Kathleen T. Hill. "Probative Legal Definition of Probative." The Free Dictionary by Farlex. July 2007. Farlex Inc. 2 July 2007.
- Fisher, George. Evidence. pp. 18–19. Foundation Press, 2002. ISBN 1-58778-176-X
- See H.R. Doc. No. 112–28, at 117 (2011)
- Fed. R. Evid. 401 (2011)
- Advisory Committee’s Note to Rule 401, Fed. R. Evid.
- United States v. Foster 986 F.2d 541 (D.C. Cir. 1993) citing James, Relevancy, Probability and the Law, 29 Cal. L. Rev. 689, 696 n. 15 (1941).
- Fed. R. Evid. 402 (2011)
- See Fed. R. Evid. 403 (2011)
- Fed. R. Evid. 402 (2011)
- Fed. R. Evid. 403 (2011)
- Fed. R. Evid. 103(a)(1)
- United States v. Wilson, 966 F.2d 243 (7th Cir. 1992)
- The Queen v. Wray,  S.C.R. 272, 1970 CanLII 2 (S.C.C.), 1970-06-26, p.273, Accessed 2007-01-05
- Paciocco, David M. & Stuesser, Lee. The law of evidence. IRWIN Law Inc., Third Edition, 2002, p.30
- Paciocco, David M. & Stuesser, Lee. The law of evidence. IRWIN Law Inc., Third Edition, 2002, p.29