Probative
Encyclopedia
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.
defines the term as follows:
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 United States Court of Appeals for the District of Columbia Circuit
explains the concept of "matter properly provable" as follows:
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.
Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of one of the enumerated grounds for exclusion. The grounds for exclusion include unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
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.
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.
, subsequent remedial measures, settlement offer
s, 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.
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 sole discretion to exclude evidence is based on the weighing of prejudical value
and probative value. Where the material evidence
is being considered for exclusion:
Judges may face the need to weigh the probative value versus the prejudicial impact in nearly any case. A part of this is symbolized by a weighing scale and represents justice
.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that 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
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel." A balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
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)
Rule 401 of the Federal Rules of EvidenceFederal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
defines the term 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
Materiality (law)
Materiality is a legal term which can have different meanings, depending on context. When speaking of facts, the term generally means a fact which is "significant to the issue or matter at hand".-In the law of evidence:...
("of consequence to the determination of the action") and have probative
Probative
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."...
value ("having any tendency to make the existence of any [material] fact...more probable or less probable than it would be without the evidence").
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
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
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. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Relevance is ordinarily a necessary condition, but not a sufficient condition
Necessary and sufficient conditions
In logic, the words necessity and sufficiency refer to the implicational relationships between statements. The assertion that one statement is a necessary and sufficient condition of another means that the former statement is true if and only if the latter is true.-Definitions:A necessary 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
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of one of the enumerated grounds for exclusion. The grounds for exclusion include unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
- unfair prejudiceUnfair prejudice in United States evidence lawUnfair prejudice in United States evidence law may be grounds for excluding relevant evidence. "Unfair prejudice" as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it is not material. The prejudice must be...
; - confusion of the issues;
- misleading the jury;
- considerations of undue delay;
- waste of time; or
- needless presentation of 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
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
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, objectionsObjection (law)
In the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
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 insuranceLiability insurance
Liability insurance is a part of the general insurance system of risk financing to protect the purchaser from the risks of liabilities imposed by lawsuits and similar claims. It protects the insured in the event he or she is sued for claims that come within the coverage of the insurance policy...
, subsequent remedial measures, settlement offer
Settlement offer
A settlement offer or offer to settle is a term used in a civil lawsuit to describe a communication from one party to the other suggesting a settlement - an agreement to end the lawsuit before a judgment is rendered....
s, 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.
Canada
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 discretionExclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
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 sole discretion to exclude evidence is based on the weighing of prejudical value
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
and probative value. Where the material evidence
Materiality (law)
Materiality is a legal term which can have different meanings, depending on context. When speaking of facts, the term generally means a fact which is "significant to the issue or matter at hand".-In the law of evidence:...
is being considered for exclusion:
Judges may face the need to weigh the probative value versus the prejudicial impact in nearly any case. A part of this is symbolized by a weighing scale and represents justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
.