Relevancy and reasons for excluding relevant evidence - Base...

Learning Outcomes

This article explains how the MBE tests relevancy, exclusion of evidence, and witness bases of testimony, including:

• Identifying when evidence satisfies Rule 401’s low threshold for logical relevance and when it is truly immaterial.
• Distinguishing logical relevance from legal relevance under Rule 403 and applying the “substantially outweighed” balancing standard on MBE fact patterns.
• Spotting fact patterns that trigger policy-based exclusions under Rules 407–411 and determining the precise purposes for which such evidence is barred or permitted.
• Evaluating witness competency by checking for personal knowledge, ability to perceive and recall events, and willingness to testify under oath or affirmation.
• Analyzing whether lay testimony has an adequate basis in firsthand perception or instead rests on speculation or inadmissible hearsay.
• Applying the rules on present recollection refreshed, including adversary rights to inspect, cross‑examine on, and sometimes introduce the refreshing item.
• Using the elements of past recollection recorded to decide when a written record may be read to the factfinder as substantive evidence.
• Comparing direct and circumstantial evidence and recognizing MBE answer choices that incorrectly treat circumstantial proof as inherently weaker or insufficient.
• Formulating efficient exam strategies for multi-issue Evidence questions that combine relevance, policy exclusions, and bases of testimony in a single fact pattern.

MBE Syllabus

For the MBE, you are required to understand the principles governing the admissibility of evidence, with a focus on the following syllabus points:

• The definition and test for relevance under the Federal Rules of Evidence.
• The concept of legal relevance and Rule 403 balancing.
• Major policy-based exclusions of relevant evidence (e.g., subsequent remedial measures, settlement offers, offers to pay medical expenses, liability insurance).
• The basic requirements for witness competency, personal knowledge, and oath or affirmation.
• The distinction between direct and circumstantial evidence.
• The rules governing the bases of testimony, including present recollection refreshed and past recollection recorded.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a valid reason for excluding otherwise relevant evidence?
   1. The evidence is unfairly prejudicial.
   2. The evidence is cumulative.
   3. The evidence is not in English.
   4. The evidence is a settlement offer.
2. Under the Federal Rules, a witness is generally competent to testify if:
   1. They are at least 21 years old.
   2. They have personal knowledge and can take an oath or affirmation.
   3. They have never been convicted of a crime.
   4. They are a party to the case.
3. Which of the following is a policy-based exclusion of relevant evidence?
   1. Evidence of a witness’s prior conviction.
   2. Evidence of subsequent remedial measures.
   3. Evidence of a party’s motive.
   4. Evidence of a witness’s bias.
4. A witness may testify to a fact if:
   1. They heard about it from a friend.
   2. They have personal knowledge of the fact.
   3. The fact is common knowledge.
   4. The fact is in a newspaper article.

Introduction

Evidence must be both relevant and admissible to be considered by the factfinder. However, not all relevant evidence is automatically admitted. The Federal Rules of Evidence distinguish between:

• Logical relevance (does this piece of evidence really help prove something that matters in the case?), and
• Legal relevance (even if it helps, is it too unfair, confusing, or time‑wasting to allow in?).

In addition, even when a topic is relevant, certain categories of evidence are excluded for policy reasons, and a witness must meet basic requirements of competency and personal knowledge before testifying. Understanding these layers is essential for answering MBE evidence questions correctly.

Key Term: Relevance
Evidence is relevant if it has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence.

Relevance and the Test for Admissibility

The starting point is Rules 401 and 402:

• Rule 401 defines relevance as a low threshold: any tendency to make a material fact more or less probable.
• Rule 402 provides that relevant evidence is generally admissible unless another rule, statute, or constitutional provision says otherwise; irrelevant evidence is inadmissible.

On the MBE, the relevance question often hides in the phrase “fact of consequence.” The fact must matter under the substantive law (e.g., negligence, intent, damages), not just to the story.

Key Term: Legal Relevance
Legal relevance refers to the idea that even logically relevant evidence may be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion, or waste of time (Rule 403).

Rule 403: Excluding Relevant Evidence

Rule 403 embodies the concept of legal relevance. Even if evidence satisfies Rule 401, the court may exclude it if the probative value is substantially outweighed by the danger of:

• Unfair prejudice
• Confusing the issues
• Misleading the jury
• Undue delay
• Wasting time
• Needless presentation of cumulative evidence

Key Term: Rule 403 Exclusion
The court may exclude relevant evidence if its probative value is substantially outweighed by risks such as unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly cumulative proof.

Key points for the MBE:

• The standard is “substantially outweighed”—a close call should result in admission, not exclusion.
• “Unfair prejudice” means an undue tendency to suggest a decision on an improper basis (e.g., emotion), not simply that the evidence is harmful to one side.
• Rule 403 decisions are discretionary and reviewed for abuse of discretion, so answer choices that suggest 403 requires exclusion are usually wrong.

Policy-Based Exclusions of Relevant Evidence

Some types of relevant evidence are excluded regardless of their probative value because Congress decided that certain social policies are more important than marginal gains in accuracy. These are often grouped together on the MBE.

Key Term: Policy Exclusion
A policy exclusion is a rule that bars otherwise relevant evidence to advance an external policy, such as encouraging repairs, settlements, or insurance, even though the evidence might help prove a fact in dispute.

The main policy-based exclusions you must know are:

Subsequent Remedial Measures (Rule 407)

Evidence that, after an injury or harm, a party took steps that would have made the earlier injury less likely (e.g., repairs, design changes, adding warnings) is not admissible to prove:

• Negligence
• Culpable conduct
• A defect in a product or its design
• A need for a warning or instruction

However, it may be admissible for other purposes, such as:

• Proving ownership, control, or the feasibility of precautionary measures, if disputed
• Impeaching a witness (though the MBE will test that courts are cautious about using it solely for impeachment)

Important nuances:

• The rule applies only to measures taken after the incident and by a party. Remedial measures taken by a third party are not covered by Rule 407.
• On design defect questions, post‑accident design changes generally cannot be used to show the original design was defective.

Worked Example 1.1

A plaintiff sues a store after slipping on a wet floor. The store manager testifies that, after the accident, the store installed warning signs and new mats. The plaintiff offers this evidence to prove the store was negligent. Is this evidence admissible?

Answer:
No. Evidence of subsequent remedial measures is inadmissible to prove negligence, culpable conduct, a defect, or the need for a warning. It could be admissible for another purpose, such as proving control of the area, but here it is offered only to show negligence.

Settlement Offers and Negotiations (Rule 408)

Rule 408 excludes:

• Offers to compromise a disputed claim, and
• Statements made during compromise negotiations about that claim

when offered to prove:

• The validity or amount of the claim, or
• Impeach by prior inconsistent statement or contradiction

But they may be admissible for another purpose, such as:

• Showing bias or prejudice of a witness (e.g., a settlement with a testifying co‑defendant)
• Negating a contention of undue delay
• Proving an effort to obstruct a criminal investigation or prosecution

Key distinctions:

• There must be a disputed claim (about validity or amount) at the time of the offer. Pre‑dispute apologies or payments usually are not protected by Rule 408.
• Statements made during negotiations are covered; that is broader than the rule on medical payments.

Offers to Pay Medical Expenses (Rule 409)

Rule 409 excludes evidence of:

• Offers to pay medical, hospital, or similar expenses

when offered to prove liability for the injury.

Crucially, only the offer itself is excluded. Any admissions of fault that accompany the offer are not protected.

Example:

• “Let me pay your hospital bills; I ran the red light”
  • Offer to pay: excluded to prove liability.
  • “I ran the red light”: admissible as a party admission.

Liability Insurance (Rule 411)

Evidence that a person was or was not insured against liability is not admissible to prove:

• Negligence, or
• Wrongful conduct

But it may be admitted for other purposes, such as:

• Proving agency, ownership, or control
• Showing bias or prejudice of a witness (e.g., an insurance adjuster testifying for a party)

On MBE questions, asking whether evidence of insurance is admissible, always ask: for what purpose?

Worked Example 1.2

In a negligence action, the plaintiff seeks to show that the defendant was insured to prove the defendant was more likely to have driven carelessly, knowing insurance would cover the loss. Is the evidence admissible?

Answer:
No. Evidence of liability insurance cannot be used to prove negligence or wrongful conduct. It could be admissible for other purposes, such as showing ownership or control, but not to invite an inference that insured parties are more careless.

Competency and Bases of Testimony

Under the Federal Rules, almost everyone is competent to testify.

Key Term: Witness Competency
A witness is competent if they have personal knowledge of the matter and can declare they will testify truthfully by oath or affirmation.

Rule 601 presumes all persons are competent unless a specific rule provides otherwise. Age, mental illness, or prior convictions usually affect weight and credibility, not competency, so long as the person can:

• Observe
• Remember
• Communicate, and
• Appreciate the duty to tell the truth

Key categorical limitations:

• A judge in the current trial cannot testify as a witness.
• Jurors have sharply limited ability to testify in the case they are deciding.

Personal Knowledge and Bases of Testimony

The primary basis for lay witness testimony is personal knowledge.

Key Term: Personal Knowledge
A witness may testify only to facts they have directly perceived through their own senses, not to what they have merely learned from others.

Rule 602 requires evidence sufficient to support a finding that the witness has personal knowledge. This is often established simply by asking, “Where were you?” or “What did you see?”

• Testimony based solely on hearsay (“My friend told me…”) lacks a proper basis unless it falls under a hearsay rule that allows it in.
• Reasonable inferences from perception are permitted (“It was dark,” “He seemed drunk”), but sheer speculation is not.

Worked Example 1.3

At trial, a witness testifies: “My neighbor told me the defendant ran the red light.” The plaintiff offers this to prove that the defendant ran the red light. What is the best objection?

Answer:
The proper objection is lack of personal knowledge and hearsay. The witness did not perceive the accident; they are parroting an out‑of‑court statement offered for its truth. The testimony lacks a proper basis under Rule 602 and is hearsay.

Refreshing Recollection and Recorded Recollection

The Rules distinguish between present recollection refreshed and past recollection recorded. Both concepts are tested as “bases of testimony.”

Present Recollection Refreshed

Sometimes a witness begins to testify but cannot remember key details. Rule 612 allows counsel to refresh the witness’s memory with almost anything—notes, a photograph, even a sound.

Key Term: Present Recollection Refreshed
Present recollection refreshed occurs when a witness’s memory is jogged by a writing or other item, after which the witness testifies from present memory rather than reading the item into evidence.

Key features:

• The witness looks at the item, then sets it aside and testifies from memory.
• The item itself is not evidence simply because it was used to refresh.
• The opposing party may inspect the item, cross‑examine on it, and, in some circumstances, introduce relevant portions into evidence.

Worked Example 1.4

A witness cannot recall the exact wording of a conversation. Counsel shows the witness notes the witness made the same day. The witness reviews the notes and then testifies accurately from memory. Defense counsel asks to see the notes. Must the court allow this?

Answer:
Yes. When a writing is used to refresh a witness’s memory while testifying, the adverse party is entitled to inspect it, cross‑examine about it, and introduce relevant portions into evidence. The witness’s testimony is based on refreshed present recollection, not on reading from the notes.

Past Recollection Recorded (Rule 803(5))

If the witness still cannot recall the information even after an attempt at refreshing, Rule 803(5) allows the contents of a properly prepared record to be read into evidence.

Key Term: Past Recollection Recorded
Past recollection recorded is a hearsay exception allowing a record to be read into evidence when the witness once knew the information, made or adopted the record when the matter was fresh, now cannot recall well enough to testify fully and accurately, and can vouch that the record was accurate when made.

Requirements:

• The witness once had personal knowledge of the matter.
• The record was made or adopted by the witness when the matter was fresh in memory.
• The record accurately reflected the witness’s knowledge at that time.
• The witness now has insufficient recollection to testify fully and accurately.

Important procedural point:

• The record is read to the jury, but is not itself received as an exhibit by the proponent (unless offered by the adverse party).

Worked Example 1.5

A bookkeeper testifies that she used to know the amount of cash in the till on the day of a robbery and wrote it in a log immediately after counting. At trial, she cannot remember the amount even after looking at the log, but she testifies that the log was accurate when she made it. May the log be used?

Answer:
Yes, as a past recollection recorded. The log was made when the matter was fresh, it accurately reflected her knowledge, and she now has insufficient recollection even after refreshing. The contents of the log may be read to the jury, but the log itself is not admitted as an exhibit by the proponent.

Direct and Circumstantial Evidence

The MBE expects you to understand that both direct and circumstantial evidence can support findings. There is no formal preference for one over the other.

Key Term: Direct Evidence
Direct evidence, if believed, directly proves a fact without requiring any inference (e.g., “I saw the defendant strike the plaintiff”).

Key Term: Circumstantial Evidence
Circumstantial evidence requires the factfinder to draw an inference from the evidence to reach the fact in issue (e.g., seeing the defendant running away holding a bloody knife).

Examples:

• Direct: An eyewitness testifies: “I saw the defendant run the red light.”
• Circumstantial: A witness testifies that the light was red and the defendant’s car entered the intersection at high speed without braking.

On the MBE, answer choices suggesting that circumstantial evidence is “inherently weaker” or “insufficient as a matter of law” are incorrect. A case can be proven entirely by circumstantial evidence.

Worked Example 1.6

In an arson trial, no one saw the fire start. The prosecution proves the defendant had a large unpaid insurance policy, was seen leaving the building shortly before the fire, and purchased gasoline that morning. Is this evidence properly admitted?

Answer:
Yes. These are pieces of circumstantial evidence that, taken together, allow the jury to infer the defendant’s guilt. The Rules do not require direct evidence of the fire being set.

Bases of Testimony and Expert Witnesses (Briefly)

Although this article focuses on lay testimony, on the MBE you should remember that experts operate under a different “basis” rule (Rule 703):

• Experts may base opinions on personal observation, facts presented at trial, or facts reasonably relied on by experts in the field, even if those facts are not themselves admissible.

That is a separate doctrine, but it contrasts with lay witnesses, who must generally have personal knowledge of the facts they describe.

Exam Warning

Evidence that is logically relevant may still be excluded if it fails the legal relevance test (Rule 403) or falls under a specific policy rule (Rules 407–411). On MBE questions, do not stop your analysis after deciding evidence is relevant—always ask whether a rule nonetheless keeps it out, and whether the specific purpose for which it is offered is permissible.

Revision Tip

When analyzing a witness’s testimony on the MBE, proceed in this order:

1. Did the witness have personal knowledge?
2. Is the testimony based on direct perception rather than hearsay?
3. If memory failed, was it properly refreshed or, if necessary, corroborated by a recorded recollection?
   If any step fails, there is a basis objection.

Key Point Checklist

This article has covered the following key knowledge points:

• Relevance under Rule 401 is a low bar: any tendency to make a fact of consequence more or less probable.
• Legal relevance under Rule 403 allows exclusion of relevant evidence when probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
• Policy-based exclusions (subsequent remedial measures, settlement negotiations, offers to pay medical expenses, and liability insurance) bar certain evidence for specific purposes but permit it for others such as bias or control.
• Witnesses are generally competent if they have personal knowledge and can testify under oath or affirmation; limitations usually affect weight, not admissibility.
• Lay witnesses must testify from personal knowledge; speculation and pure hearsay lack a proper basis.
• Present recollection refreshed permits a witness to look at an item to jog memory, after which the witness testifies from present memory; the item is not automatically evidence.
• Past recollection recorded is a hearsay exception that allows a record to be read into evidence when the witness once knew the information, made an accurate record when it was fresh, and now cannot recall sufficiently.
• Direct and circumstantial evidence are equally valid forms of proof; circumstantial evidence alone can support a verdict.

Key Terms and Concepts

• Relevance
• Legal Relevance
• Rule 403 Exclusion
• Policy Exclusion
• Witness Competency
• Personal Knowledge
• Present Recollection Refreshed
• Past Recollection Recorded
• Direct Evidence
• Circumstantial Evidence