Relevancy and reasons for excluding relevant evidence - Bases of testimony

Learning Outcomes

After reading this article, you will be able to identify when evidence is relevant, recognize the main reasons relevant evidence may be excluded, and explain the basic requirements for witness competency and bases of testimony. You will be able to apply these principles to MBE-style questions and avoid common pitfalls relating to admissibility and witness qualification.

MBE Syllabus

For MBE, you are required to understand the principles governing the admissibility of evidence, including when relevant evidence may be excluded and the basic requirements for witness testimony. This article covers:

  • The definition and test for relevance under the Federal Rules of Evidence.
  • Major policy-based exclusions of relevant evidence (e.g., subsequent remedial measures, settlement offers).
  • The basic requirements for witness competency and personal knowledge.
  • The distinction between direct and circumstantial evidence.
  • The basic rules for bases of testimony and refreshing recollection.

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 court. However, not all relevant evidence is automatically admissible. Some relevant evidence is excluded for policy reasons or because it fails to meet basic requirements for testimony. This article explains the rules of relevance, the main policy-based exclusions, and the basic requirements for witness competency and bases of testimony under the Federal Rules of Evidence.

Relevance and the Test for Admissibility

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. The threshold for relevance is low, but the evidence must relate to a material issue in the case.

Key Term: Relevance Evidence is relevant if it tends to make a fact of consequence more or less probable than it would be without the evidence.

Even if evidence is relevant, the court may exclude it if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion, misleading the jury, undue delay, or 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 or confusion.

Policy-Based Exclusions of Relevant Evidence

Certain types of relevant evidence are excluded for public policy reasons, regardless of their probative value. These include:

  • Subsequent Remedial Measures: Evidence that a party took steps after an injury to make something safer is inadmissible to prove negligence, culpable conduct, a defect, or a need for a warning. It may be admissible for other purposes, such as proving ownership or control.
  • Settlement Offers and Negotiations: Offers to settle a disputed claim, and statements made during settlement negotiations, are inadmissible to prove liability or the amount of a claim.
  • Offers to Pay Medical Expenses: Offers to pay medical or similar expenses are inadmissible to prove liability for the injury.
  • Liability Insurance: Evidence that a party was or was not insured is inadmissible to prove negligence or wrongful conduct, but may be admissible for other purposes, such as proving agency or ownership.

Key Term: Policy Exclusion Certain relevant evidence is excluded to encourage socially desirable behavior, such as making repairs or settling disputes.

Competency and Bases of Testimony

A witness is generally competent to testify if they have personal knowledge of the matter and can take an oath or affirmation to testify truthfully. The Federal Rules presume all persons are competent unless a specific rule provides otherwise.

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

A witness may only testify to matters they have personally observed or experienced. Testimony based on hearsay or speculation is not permitted.

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

Direct and Circumstantial Evidence

Direct evidence proves a fact without inference (e.g., eyewitness testimony). Circumstantial evidence requires the factfinder to draw an inference from the evidence to the fact in issue.

Key Term: Direct Evidence Evidence that, if believed, directly proves a fact without inference.

Key Term: Circumstantial Evidence Evidence that requires the factfinder to draw an inference to connect it to a fact in issue.

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 or culpable conduct. It may only be admissible for other purposes, such as proving ownership or control.

Worked Example 1.2

A witness testifies that she saw the defendant at the scene of a robbery. On cross-examination, she is asked about her eyesight. She admits she was not wearing her glasses and could not see clearly. Is her testimony admissible?

Answer: The witness is competent, but her lack of personal knowledge or ability to perceive the event goes to the weight of her testimony, not its admissibility. The jury may consider her limitations in evaluating her credibility.

Exam Warning

Evidence that is relevant may still be excluded if it poses a substantial risk of unfair prejudice, confusion, or is excluded by a specific policy rule. Always check for Rule 403 and policy exclusions before assuming admissibility.

Revision Tip

When analyzing a witness’s testimony, always ask: Did the witness have personal knowledge? Is the testimony based on direct observation? If not, object for lack of proper basis.

Summary

  • Relevance is the threshold for admissibility, but not all relevant evidence is admitted.
  • Rule 403 allows exclusion of relevant evidence for prejudice, confusion, or waste of time.
  • Policy-based exclusions bar certain evidence to encourage repairs, settlements, or insurance.
  • Witnesses must have personal knowledge and be able to testify truthfully.
  • Direct evidence proves facts directly; circumstantial evidence requires inference.

Key Point Checklist

This article has covered the following key knowledge points:

  • Evidence is relevant if it makes a fact more or less probable.
  • Relevant evidence may be excluded for unfair prejudice, confusion, or policy reasons.
  • Policy exclusions include subsequent remedial measures, settlement offers, medical payments, and insurance.
  • Witnesses must be competent: personal knowledge and oath or affirmation are required.
  • Testimony must be based on personal knowledge, not speculation or hearsay.
  • Direct evidence proves facts directly; circumstantial evidence requires inference.

Key Terms and Concepts

  • Relevance
  • Rule 403 Exclusion
  • Policy Exclusion
  • Witness Competency
  • Personal Knowledge
  • Direct Evidence
  • Circumstantial Evidence
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