Rule 401: Definition of “Relevant Evidence”

  • militarydefenselawyers357Rule 401. Definition of “Relevant Evidence.”
    “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.
  1. Establishing Relevancy – A basic tenet of American jurisprudence is that finders of fact may consider only relevant evidence. Military Rule of Evidence 401 is taken without change from the Federal Rule and adopts a logical approach to relevance. Rule 401 permits both circumstantial and direct evidence to satisfy the relevancy criteria. The logical starting place when evaluating any issue at
    trial is the concept of relevance. Almost every issue in evidence law involves the
    idea of relevance. In fact, a relevancy objection, although often overlooked, is
    frequently the most valid objection available to counsel. Military courts have
    used Rule 401 to expand the amount of information available to the members.
    See, e.g., United States v. Tomlinson, 20 M.J. 897 (A.C.M.R. 1985) (Rule 401
    was “intended to broaden the admissibility” of most evidence.)
  2. Requirements of Counsel. When a counsel seeks to have evidence admitted, she
    must be able to specify what issue it relates to and show how it rationally
    advances the inquiry about that issue. Counsel should be prepared to articulate
    why certain requested evidence is relevant by doing the following:

    1. describe the evidence;
    2. explain its nexus to the consequential issue in the case; and
    3. indicate how the offered evidence will establish the fact in question.
  3. Standard of “Any Tendency” – is the lowest possible standard for relevancy.
    This standard shifts the emphasis from admissibility to weight. The test for
    logical relevance (as opposed to legal relevance discussed later in this outline) is
    whether the item of evidence has any tendency whatsoever to affect the balance
    of probabilities of the existence of a fact of consequence.

    1. United States v. Huet-Vaughn, 43 M.J. 105 (1995). Army reserve
      physician’s motives and reasons for refusing to support Desert Shield
      and views about the lawfulness of her deployment orders irrelevant to
      charge of desertion with intent to avoid hazardous duty.
    2. United States v. Schlamer, 52 M.J. 80 (1999). Accused was charged
      with the premeditated murder of a female. Victim was found with her
      throat cut. At trial, the government introduced pictures and writings
      seized from the accused. In these documents, the accused set out in
      graphic detail his desires to kill women and have sex with them and
      commit other violent acts. These writings did not mirror the actual
      crime, and defense claimed that they were not relevant. The military
      judge admitted the evidence over the defense objection. The CAAF held
      Rule 401 is a low standard and since the defense was trying to portray
      the accused as a docile person, this evidence had some tendency to show
      the darker side that was consistent with his confession.
    3. United States v. Berry, 61 M.J. 91 (2005) Relevant evidence under Rule
      401 is 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. Evidence of a
      prior uncharged sexual assault by an accused involving a younger victim
      satisfied the relevance prong of the threshold test for the admission of
      uncharged sexual assault in a case where the accused was charged with
      forcible sodomy of a victim who was drunk, as it has some tendency to
      make it more probable that the accused committed a nonconsensual act
      against a vulnerable person.
  4. Relationship between Rule 401 and the Due Process Clause. In United States v.
    Brewer, 61 M.J. 425 (2005), the CAAF held that in a urinalysis case, the defense
    was entitled to introduce a “mosaic alibi” defense to counter the permissive
    inference of wrongful use, even though such evidence would violate Rules 404
    and 405.
  5. The Main Relevancy Provisions
    1. The Military Rules of Evidence have three main relevance provisions:
      Rules 401, 402, and 403. Rule 401 defines what is relevant. Rule 402
      require that evidence be relevant in order to be admitted and that
      irrelevant evidence be excluded. Finally, Rule 403 allows the military
      judge to use discretion to avoid admitting otherwise relevant evidence
      due to concerns about unfair prejudice, confusion of issues, misleading
      the panel, or by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence.
    2. Justification for the Main Relevancy Provisions: Relevancy
      requirements help save time, narrow the topics the parties have to
      develop in preparation for trial, and increase the perceived legitimacy of
      courts-martial by ensuring that outcomes will be based on information
      most people would believe have something to do with the issues at trial.
    3. Discussion of Rule 402 and 403: A more detailed discussion of Rules
      402 and 403 are contained within this outline.

Establishing Relevancy

Requirements of Counsel