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

Learning Outcomes

This article explains evidentiary relevance under the Federal Rules of Evidence, including:

• the definition of logical relevance in FRE 401 and how probativeness and materiality interact in bar exam hypotheticals;
• the general rule of admissibility in FRE 402 and its relationship to other exclusionary rules, such as hearsay, privilege, and character evidence;
• the distinction between logical relevance (FRE 401) and legal relevance (FRE 403) and how that distinction appears in common MBE distractors;
• the structure and operation of the FRE 403 balancing test, emphasizing the “substantially outweighed” standard and the strong presumption in favor of admissibility;
• the principal FRE 403 dangers—unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, and needless cumulative evidence—with examples of how each may justify exclusion;
• the treatment of direct versus circumstantial evidence in relevance analysis and why circumstantial proof is often tested on the MBE;
• the role of conditional relevance and preliminary facts under FRE 104(b), including how judges and juries divide responsibility for determining whether evidence ultimately counts toward a fact of consequence.

MBE Syllabus

For the MBE, you are required to understand relevance and reasons for excluding relevant evidence, with a focus on the following syllabus points:

• Defining relevance according to FRE 401, encompassing both probativeness and materiality.
• Understanding the general principle under FRE 402 that relevant evidence is admissible unless otherwise excluded.
• Identifying the specific grounds listed in FRE 403 for excluding relevant evidence, such as unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.
• Applying the FRE 403 balancing test, which permits exclusion only when the probative value is substantially outweighed by these dangers.
• Distinguishing between logical relevance (the tendency to prove a fact) and legal relevance (admissibility after the FRE 403 balancing).
• Recognizing the role of preliminary facts and conditional relevance under FRE 104(b), and how judges and juries divide responsibility for relevance determinations.
• Differentiating between direct and circumstantial evidence and understanding that both can be equally relevant and admissible.

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. Evidence is relevant under FRE 401 if it:
   1. Conclusively proves a material fact.
   2. Is undisputed by the opposing party.
   3. Has any tendency to make a fact of consequence more or less probable.
   4. Directly pertains to the defendant's character for honesty.
2. Under FRE 403, a judge may exclude relevant evidence if:
   1. Its probative value is less than its prejudicial effect.
   2. Its probative value is substantially outweighed by the danger of unfair prejudice.
   3. The evidence is primarily circumstantial rather than direct.
   4. The opposing party strongly objects to its admission.
3. The concept of "materiality" under FRE 401 means the fact the evidence seeks to prove must:
   1. Be the ultimate issue in the case.
   2. Be "of consequence" to the determination of the action.
   3. Have been mentioned in the pleadings.
   4. Be highly probable based on the evidence.

Introduction

Relevance is the key principle of evidence admissibility. Before any piece of evidence can be admitted, it must be deemed relevant to the case at hand. The Federal Rules of Evidence (FRE) establish a two-step process for analyzing relevance. First, the evidence must meet the low threshold of logical relevance under FRE 401, meaning it has any tendency to make a consequential fact more or less probable. Second, even if logically relevant, the evidence must survive the balancing test of legal relevance under FRE 403, where its probative value is weighed against potential dangers like unfair prejudice or confusion. FRE 402 establishes the general rule: relevant evidence is admissible unless excluded by the Constitution, a federal statute, the FRE, or other Supreme Court rules.

Key Term: Relevance
Under FRE 401, 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.

On the MBE, relevance questions often appear simple, but small wording differences in answer choices test whether you understand the low bar for FRE 401, the strong presumption of admissibility, and the limited circumstances under which courts may exclude otherwise relevant evidence.

Key Term: Logical Relevance
Evidence that satisfies the requirements of FRE 401, meaning it is both probative and material.

Key Term: Legal Relevance
The principle that relevant evidence may be excluded if its probative value is substantially outweighed by pragmatic concerns listed in FRE 403.

Logical Relevance: FRE 401

FRE 401 defines the test for relevance:

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

This definition incorporates two concepts: probativeness and materiality.

Probativeness (Tendency to Make a Fact More or Less Probable)

This is a very liberal standard. The evidence does not need to make the fact conclusively true or even highly probable. It only needs to have any tendency – even a slight one – to shift the probability. If the evidence offered makes a fact slightly more or less likely than it seemed before the evidence was introduced, it is probative. Both direct and circumstantial evidence can be probative.

Key Term: Probativeness
The degree to which a piece of evidence tends to make a fact more or less probable than it would be without that evidence.

Two important points for the exam:

• The question is comparative: Does the world with this piece of evidence look any different than the world without it regarding the fact in issue? If yes, the probativeness requirement is met.
• The judge does not ask whether the evidence is persuasive by itself. Several “weak” pieces of evidence may combine to persuade; each “brick” in the evidentiary wall can be admitted if it shifts probability even slightly.

Key Term: Direct Evidence
Evidence that, if believed, directly establishes a fact without requiring any inference (for example, “I saw the defendant stab the victim”).

Key Term: Circumstantial Evidence
Evidence that requires an inference to connect it to a fact in issue (for example, seeing the defendant standing over the victim with a bloody knife).

Both direct and circumstantial evidence can satisfy FRE 401 and are treated equally under the rules. The MBE occasionally tempts you with answer choices suggesting that circumstantial evidence is less relevant or less admissible; those are incorrect.

Materiality (Fact of Consequence)

The fact that the evidence helps to prove or disprove must be legally significant in the case. It must relate to an element of the claim, charge, or defense as determined by the applicable substantive law. Facts concerning witness credibility are also considered "of consequence."

Key Term: Materiality
The requirement that the fact made more or less probable by the evidence must matter to the resolution of the case (for example, it relates to an element, claim, defense, or credibility issue).

Key points about materiality:

• A fact can be material even if it pertains only to damages, jurisdiction, or a particular defense rather than liability on the main claim.
• A fact relating solely to credibility (bias, prior inconsistent statements, perception) is material because credibility always affects the determination of the action.
• Evidence offered to prove a point that is entirely undisputed might technically be relevant but could potentially be excluded under FRE 403 for wasting time.

Sometimes materiality depends on how the parties have framed the issues in the pleadings and pretrial orders. If a particular issue has been taken out of dispute by a stipulation, evidence offered solely to prove that point may be excluded as needlessly cumulative or time-wasting, even though it is technically relevant.

General Rule of Admissibility: FRE 402

FRE 402 provides the basic rule governing the admissibility of relevant evidence:

Relevant evidence is admissible unless any of the following provides otherwise:

• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
  Irrelevant evidence is not admissible.

This rule emphasizes that relevance is a necessary first step, but other rules (for example, hearsay, privilege, character evidence rules, authentication requirements, or the FRE 403 balancing test) can still lead to the exclusion of logically relevant evidence.

On the MBE, do not stop your analysis after concluding that evidence is relevant. FRE 402 reminds you that relevance answers only the first question: “Is this evidence related enough to the case to be considered?” The second question is: “Is there any other rule that keeps it out?”

Examples of logically relevant but inadmissible evidence:

• A confidential communication between attorney and client that directly proves liability may be excluded under the attorney–client privilege.
• A police report containing a detailed description of the accident may be relevant but excluded as hearsay if no exception applies.
• Evidence of liability insurance may be relevant to show negligence but excluded under FRE 411 when offered to prove that the insured acted negligently.

Legal Relevance: FRE 403 Exclusion

Logically relevant evidence is not automatically admissible. FRE 403 grants the trial judge discretion to exclude relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative evidence."

Key Term: Probative Value
The strength and importance of a piece of evidence in proving a fact of consequence, considering the need for the evidence and the availability of less risky alternatives.

Key Term: Cumulative Evidence
Evidence that repeats or duplicates what has already been established through other admitted proof, adding little or nothing to the fact-finder’s understanding.

Key Term: Unfair Prejudice
An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one, which substantially outweighs the evidence's probative value.

The balancing test under FRE 403 is strongly weighted in favor of admissibility. Exclusion is appropriate only when the risks substantially outweigh the probative value. That word “substantially” is a common MBE trap.

Important exam points:

• All damaging evidence is “prejudicial” in the ordinary sense. FRE 403 is concerned only with unfair prejudice.
• “Unfair surprise” is not a listed ground under FRE 403. Answer choices suggesting exclusion because of “surprise” alone are incorrect.
• Mere “prejudice” is not enough. Almost all relevant evidence hurts one side’s case; that is why it is offered.

Grounds for Exclusion under FRE 403

Unfair Prejudice

This is the most common ground. Evidence is unfairly prejudicial if it has an undue tendency to suggest a decision on an improper basis, typically an emotional one, such as sympathy, horror, or contempt, or if it might lead the jury to misuse the evidence (for example, using prior bad acts evidence for propensity).

Typical examples:

• Graphic photos of a victim’s injuries, especially if multiple similar photos are offered.
• Evidence of a defendant’s prior crimes offered to show that the defendant is a “bad person” likely to have committed this crime.
• Highly inflammatory language or slogans that distract from reasoned judgment.

The court can often manage this risk by:

• Limiting the number of inflammatory exhibits (for example, allowing one photo instead of ten).
• Redacting the most inflammatory aspects of a document.
• Giving a limiting instruction explaining the proper (and improper) use of the evidence.

Confusing the Issues / Misleading the Jury

Evidence might be excluded if it could distract the jury from the central issues, introduce complex side issues, or if the jury might misunderstand its significance or give it undue weight.

Examples:

• Technical or scientific evidence that is only tangentially related to the key issues but would require lengthy explanation.
• Evidence relating to collateral disputes (for example, multiple side disagreements between the parties) that would sidetrack the trial.

Undue Delay / Waste of Time / Cumulative Evidence

Evidence that is only marginally probative might be excluded if it would consume excessive trial time or simply repeats points already established by other evidence.

• Calling ten witnesses to prove the same simple fact might be excluded as cumulative.
• Proving an undisputed detail with extensive evidence could be considered a waste of time.

Remember that the judge’s role is to manage the trial efficiently. FRE 403 gives the judge discretion to streamline the presentation of proof while still allowing each side to fairly present its case.

Worked Example 1.1

In a trial for arson, the prosecution seeks to introduce evidence that the defendant, an avid reader, checked out several books on starting fires from the public library six months before the fire in question. The defendant objects on relevance grounds. How should the court rule?

Answer:
The evidence is likely logically relevant under FRE 401. The fact that the defendant researched how to start fires has some tendency to make it more probable that he intentionally set the fire charged. Whether he intentionally set the fire is clearly "of consequence." However, the court might exclude it under FRE 403. The probative value is arguably low given the time lapse (six months) and the fact that merely reading books doesn't equate to criminal action. The danger of unfair prejudice (jury inferring propensity to commit arson from reading habits) or misleading the jury could be argued to substantially outweigh this low probative value. Admissibility depends on the judge's balancing.

Worked Example 1.2

Plaintiff sues Defendant for injuries sustained when Plaintiff slipped and fell on Defendant's icy sidewalk. Defendant denies negligence. Plaintiff offers evidence that Defendant received three official warnings from the city about failing to clear the same sidewalk in the prior winter. Is this evidence relevant and admissible?

Answer:
The evidence is logically relevant under FRE 401(a) because prior warnings make it more probable that Defendant was aware of the recurring icy condition and the danger it posed, which relates to the "notice" element often relevant in negligence cases. The fact of Defendant's notice or knowledge is "of consequence" under FRE 401(b). However, its admissibility hinges on FRE 403. The probative value relates to proving Defendant's knowledge of a dangerous condition. The danger of unfair prejudice is significant – the jury might improperly infer that because Defendant was allegedly negligent before, he must have been negligent this time (propensity). The court must balance whether the probative value for notice is substantially outweighed by this prejudicial danger. It could be admitted with a limiting instruction.

Worked Example 1.3

At a murder trial, the prosecution offers a single color photograph of the victim’s body at the crime scene to show the position of the body and the location of wounds. The defense objects under FRE 403 as unfairly prejudicial.

Answer:
The photo is clearly logically relevant: it helps the jury understand the nature and location of the wounds and the scene, which bear on issues like intent and manner of killing. Graphic evidence is often prejudicial, but not necessarily unfairly so. A single necessary photograph whose probative value is substantial will usually not be excluded. If, however, the prosecution sought to introduce numerous similar gruesome photos, the cumulative emotional impact might substantially outweigh the marginal additional probative value, justifying exclusion of some of them under FRE 403.

Worked Example 1.4

In a civil battery case, the plaintiff seeks to introduce evidence that, when the defendant struck him, the defendant shouted a racial slur. The defendant objects, arguing the language is highly prejudicial.

Answer:
The statement is relevant because it may show intent and motive, and it is part of the very event being litigated. Although the language is inflammatory and may cause the jury to dislike the defendant, that does not necessarily make its impact “unfair” under FRE 403. The probative value of the statement in showing the nature of the act and the defendant’s state of mind is high, and it is unlikely that the danger of unfair prejudice substantially outweighs that value. The evidence is likely admissible.

Conditional Relevance and Preliminary Facts (FRE 104(b))

Some evidence is relevant only if another fact is true. In those situations, the relevance of the evidence is conditional on a “preliminary fact.” FRE 104(b) addresses these conditional relevance questions.

Key Term: Conditional Relevance
A situation in which the relevance of one item of evidence depends on the existence of some other fact (a preliminary fact).

Key Term: Preliminary Fact
A fact that must exist before other evidence becomes relevant or admissible, such as whether a person heard a statement offered to prove notice.

Example of conditional relevance:

• A statement is offered to prove that X had notice of a dangerous condition. The statement is relevant to notice only if X actually heard it. Whether X heard it is the preliminary fact.

FRE 104(b) allocates responsibility between judge and jury:

• The judge first decides whether there is enough evidence for a reasonable jury to find that the preliminary fact exists. If so, the judge allows the evidence in.
• The jury then decides whether it believes the preliminary fact. If the jury concludes the preliminary fact did not occur (for example, X did not hear the statement), it should give the evidence no weight for that purpose.

This is different from preliminary questions about competency (for example, existence of a privilege, qualification of an expert, or voluntariness of a confession). Those questions are for the judge alone under FRE 104(a) because once the jury hears the evidence, the damage cannot easily be undone.

On the MBE, conditional relevance often appears in questions involving:

• Agency (whether the person who made a statement was the defendant’s agent).
• Authenticity of a document (whether the defendant actually signed the contract).
• Personal knowledge (whether the witness actually perceived the event).

Worked Example 1.5

Plaintiff offers an email allegedly sent by Defendant’s assistant to show that Defendant knew about a safety defect. The email is relevant only if the assistant was acting as Defendant’s agent with authority to communicate about safety issues. Defendant denies any such agency relationship.

Answer:
The agency relationship is a preliminary fact that determines the conditional relevance of the email. Under FRE 104(b), the judge asks whether there is sufficient evidence from which a reasonable jury could find that the assistant was Defendant’s agent (for example, job title, prior communications, instructions from Defendant). If so, the judge admits the email, and the jury decides whether there really was an agency relationship and how much weight to give the email. If there is no such evidence, the judge excludes the email as irrelevant because the condition of relevance (agency) has not been met.

Exam Warning

Be precise with the terminology. "Irrelevant" technically means evidence fails FRE 401. Evidence excluded under FRE 403 is relevant but excluded for pragmatic reasons. MBE distractors often blur this line. First, determine if the evidence meets the low bar of FRE 401 relevance. Only then apply the FRE 403 balancing test. Remember the standard for exclusion under FRE 403 is "substantially outweighed," favoring admissibility.

Also remember:

• Circumstantial evidence is not weaker than direct evidence; both can be fully sufficient and admissible.
• “Unfair surprise” is not a valid FRE 403 ground.
• Evidence being “prejudicial” in the colloquial sense is not enough; almost all relevant evidence hurts one side.

Key Point Checklist

This article has covered the following key knowledge points:

• Relevance is the basis of admissibility; irrelevant evidence is never admissible.
• FRE 401 defines logical relevance: evidence must be probative (any tendency to make a fact more or less probable) and material (fact is of consequence).
• Both direct and circumstantial evidence can be relevant and are treated equally under the rules.
• FRE 402 states relevant evidence is admissible unless excluded by the Constitution, a federal statute, the FRE, or Supreme Court rules.
• Many other rules (for example, privilege, hearsay, and character evidence rules) can override the general admissibility of relevant evidence.
• FRE 403 allows exclusion of relevant evidence if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.
• The FRE 403 balancing test favors admission; exclusion requires a substantial outweighing of probative value by the listed dangers.
• Unfair prejudice means an improper, typically emotional impact or a risk that the jury will misuse the evidence, not merely that the evidence is damaging.
• Conditional relevance under FRE 104(b) arises when evidence is relevant only if some preliminary fact exists; the judge screens for sufficiency, and the jury decides whether the preliminary fact is actually established.
• Preliminary questions about competency or privilege are decided by the judge under FRE 104(a) and may keep evidence from the jury entirely.
• Logical relevance (FRE 401) differs from legal relevance (admissibility after FRE 403 balancing and other rules).

Key Terms and Concepts

• Relevance
• Logical Relevance
• Legal Relevance
• Probativeness
• Materiality
• Direct Evidence
• Circumstantial Evidence
• Probative Value
• Unfair Prejudice
• Conditional Relevance
• Preliminary Fact
• Cumulative Evidence