In an engaging new article, which is now forthcoming in the California Law Review, Asees Bhasin challenges the belief that Rule 401’s threshold for evidentiary relevance presents an objective, neutral, and uniformly “low bar.” Her piece, Bias and the “Low Bar” of Relevance, instead argues that Rule 401’s relevance rule, as currently applied, is far more subjective and malleable than commonly presumed, often functioning as a high barrier to exclude evidence of structural discrimination while simultaneously acting as a porous gateway for evidence steeped in cultural stereotypes.

I found Bhasin’s article to be a meaningful and important contribution to a growing wave of critical scholarship in evidence law, and the post below provides a few initial reactions. It begins by summarizing Bhasin’s central thesis and situating her contribution among the expanding literature of critical evidence theory. The post then uses Bhasin’s work as a foundation to explore the deeper policy choices embedded in Rule 401, analyzing how Rule 401’s calibration of relevance reflects one of the most fundamental normative policy choices in all of evidence law.

Article Summary

Bhasin’s article begins by deconstructing the conventional wisdom surrounding Rule 401. It outlines how the rule, born from the Thayerian school of thought, was designed to be a simple gateway of logical connection, leaving questions of prejudice or low probative weight to be handled by other rules, primarily Rule 403.

Bhasin then scrutinizes this clean theoretical model, demonstrating a troubling inconsistency in its application. Her analysis shows how evidence that could illuminate systemic issues, such as patterns of discriminatory bias in policing and the private sector, is frequently deemed irrelevant to an individual case. In these instances, judges effectively demand a much higher, more direct connection for the evidence to clear the relevance threshold. Conversely, Bhasin finds that when evidence aligns with dominant social norms or stereotypes, the “low bar” is invoked to bypass meaningful scrutiny, allowing problematic assumptions to enter the trial under the guise of common sense.

To ground her critique, Bhasin then provides a detailed survey of relevance determinations in the rapidly expanding area of reproductive prosecutions. As part of this case study, Bhasin analyzes how courts treat evidence of a defendant’s conduct, attitudes, or beliefs during pregnancy when offered to prove intent for a post-birth crime. Bhasin’s key example here is the case of Moira Akers, where a court admitted evidence of the defendant’s early-pregnancy internet searches about abortion and her decision to forgo prenatal care as relevant to her intent to murder her newborn. Critiquing that move, Bhasin dissects the chain of inferences required to connect this evidence to the alleged crime, arguing that the logical links are sustained only by unstated, biased assumptions about maternal ambivalence and what constitutes “proper” maternal behavior. She then extends this analysis to other contexts, including cases where a history of abortion is offered to prove unrelated charges, showing a consistent pattern of courts accepting speculative, stereotype-driven reasoning as probative and material.

Following this detailed case analysis, Bhasin steps back and proposes a framework for understanding the subjectivity inherent in all relevance determinations. She posits that at least four factors contribute to the variance in how Rule 401 is applied. First is the methodology a judge employs, particularly the baseline assumptions and questions that frame the inquiry. Second is the individual judge’s own knowledge, experience, and standpoint, which inevitably shape their understanding of “logic and general experience.” Third are dominant cultural norms, which create an invisible baseline of expected behavior, especially for women and mothers, making any deviation seem suspicious and thus evidentiarily significant. Finally, the article identifies the crucial role of stereotypes, arguing that much of the evidence in these cases gains its perceived relevance only because it activates harmful generalizations about, for example, “bad mothers,” allowing bias to substitute for a genuine logical connection.

In its concluding section, the article argues not for a change to the text of Rule 401, but for a more critical and exacting application of the rule as it exists. Bhasin contends that evidence whose only claim to relevance is based on a stereotype or cultural bias does not, in fact, have any legitimate tendency to prove a consequential fact and should be excluded under Rule 401 itself.

Ultimately, then, the article argues for reform within the existing Rule 401 paradigm rather than challenging the rule itself. And Bhasin defends this focus on Rule 401 on multiple grounds. Most notably, she argues that reconceptualizing Rule 401 is superior to relying on Rule 403, the traditional backstop for prejudicial evidence. Bhasin explains, inter alia, that exclusion under Rule 401 sends a powerful expressive message that the evidence is fundamentally worthless as a matter of logic, not just too emotionally charged for the jury. Bhasin likewise avoids calling for a higher standard of “legal relevance.” Bhasin argues that raising the relevance bar across the board could make it even more difficult for marginalized litigants to introduce evidence that challenges dominant power structures. Similarly, Bhasin resists the allure of specific shield laws, drawing on critiques that such rules can be overly rigid. More fundamentally, the article suggests that creating a patchwork of special prohibitions fails to address the core problem, which is flawed, biased reasoning.

Contribution to the Literature

Bhasin’s article arrives at a fascinating moment in evidence scholarship. For nearly half a century, the core concept of relevance has been treated as largely settled. Of course, this has not always been the case. In fact, the proper standard for evidentiary relevance was once the focus of intense debate. From the earliest days of the common law, when juries possessed personal knowledge of disputes and formal evidence rules were virtually nonexistent, through Jeremy Bentham’s 1825 observation that irrelevant testimony is not evidence at all, to the sophisticated theoretical frameworks of the twentieth century, scholars and jurists have wrestled with where to draw the line between information that helps and information that hinders the search for truth.

As Bhasin’s article demonstrates, the history of this debate reveals two competing visions that have shaped evidence law for over a century. James Bradley Thayer’s revolutionary 1898 treatise established what would become the dominant modern view: relevance is fundamentally “an affair of logic and experience,” not law, and courts should admit any evidence with even the slightest logical connection to a consequential fact. This radically inclusive approach trusted juries to sort wheat from chaff and relegated exclusion to specific policy-based rules. Against this stood John Henry Wigmore’s more pragmatic vision, articulated in his early twentieth-century treatise, which demanded that evidence possess a “plus value” before reaching the jury. Wigmore worried that minimally probative evidence would waste time, confuse issues, and most critically, trigger unfair prejudice that juries could not properly cabin.

Notably, this historical debate reflects fundamentally different conceptions of the trial process itself. Thayer’s approach embodied deep faith in the adversarial system and jury competence, while Wigmore’s reflected skepticism about whether untrained factfinders could resist the pull of emotionally charged but marginally relevant information. Courts throughout the late nineteenth and early twentieth centuries struggled to navigate between these poles, sometimes speaking of evidence being “too remote” or lacking “sufficient probative value” even as they nominally embraced broad relevancy principles. The terminology itself became a battlefield, with courts conflating materiality and relevance, mixing logical connection with policy concerns, and creating “considerable confusion” in the precedents.

So when the Advisory Committee drafted the Federal Rules in the 1960s and 1970s, they did not simply codify existing practice, they made a decisive choice. The Committee explicitly rejected Wigmore’s “plus value” requirement as “unworkable and unrealistic,” embracing instead Thayer’s vision of minimal logical relevance. But critically, they did not ignore Wigmore’s concerns. Instead, they relocated them to Rule 403, creating a two-step architecture that separated the threshold question of logical connection from the discretionary balancing of probative value against prejudicial effect. This architectural choice created a strong presumption of admissibility and seemingly settled the great debate: relevance is a low, objective threshold, and prejudice is a separate, discretionary backstop.

The adoption of the Federal Rules of Evidence in 1975 seemingly marked the end of the common law debate about relevancy. In the decades since Rule 401’s codification, scholarly attention has largely shifted elsewhere. The idea that relevance is simply a low, objective bar has, at least from my vantage, become institutional bedrock.

Enter Bhasin’s new piece, which is a powerful entry in a new wave of critical scholarship that is aiming to destabilize the traditional consensus in modern evidence law. Spearheaded by prominent scholars including Bennett Capers, Jasmine Gonzales Rose, Jasmine Harris, and Julia Simon-Kerr (alongside many others) have progressively chipped away at the rationalist tradition’s claim to objectivity, revealing the political and social dimensions of what was once seen as a purely technical field. This modern critical wave challenges the very premise that foundational concepts like “common sense” or “logical connection” are value-neutral. And it has revived deep, theoretical debates across evidence law, infusing them with a new perspective focused on identity, power, and justice.

Within this revival, Bhasin’s contribution is both distinctive and foundational. Her intervention is to pull the critical focus back to the very first evidentiary gate, relevance itself under Rule 401. While much existing critical work has targeted the discretionary spaces of Rule 403 or the inherent bias of character rules, Bhasin makes the bold point that the problem often starts earlier. The issue, as Bhasin sees it, is not just that prejudicial evidence is being improperly balanced; it is that biased, stereotype-driven evidence is being miscategorized as having any logical probative value in the first place. Her argument, therefore, mounts an ambitious challenge to the integrity of the Rule 401 inquiry itself.

From my vantage, Bhasin’s analysis puts her in direct conversation with leading critical evidence scholars. Her deconstruction of how dominant norms about motherhood inform relevance determinations builds directly on Gonzales Rose’s work. Her focus on how evidence of legally protected conduct is repurposed to prove criminal intent echoes the work of scholars like Erin Collins, who examine how evidentiary rulings can expand the scope of criminalization. And her insistence that judges must look past the surface of “common sense” to the underlying cultural assumptions aligns perfectly with the feminist tradition of evidentiary critique. Bhasin’s work synthesizes these threads and aims them squarely at the doctrinal heart of evidence law, leading to a compelling argument that the post-1975 intellectual peace was built on an unstable foundation.

Nunn’s Take

Bhasin makes an ambitious choice by targeting the inferential reasoning underlying certain forms of evidence rather than challenging the existing Rule 401 paradigm itself. Evidence law would undoubtedly benefit from a practice of making inferential chains of reasoning far more explicit, and I commend Bhasin for leading the way on that front.

But where Bhasin shows the sage wisdom in resisting a protracted conversation about whether Rule 401 is the optimal approach to evidentiary relevance, I can’t resist. To my mind, evidence law would also benefit from much greater intentionality and transparency regarding the immensely important implications of our standard for evidentiary relevance. Specifically, the calibration of our relevance standard reveals both our normative commitments in the face of inescapable policy tradeoffs and our comparative institutional trust among the courtroom’s key actors. I unpack these two ideas below.

Normative Tradeoffs

To properly weigh the normative desirability of Rule 401’s current calibration for relevance, we have to be candid about the policy tradeoffs inherent in any relevance standard, tradeoffs concerning verdict accuracy, trial legitimacy, and systemic efficiency. The current Thayerian rule was designed to advance a specific vision of these values, but it is far from an inevitable outcome.

Let’s start with verdict accuracy. The fundamental argument for Rule 401’s permissive “any tendency” test is that it enhances accuracy by maximizing the information available to the jury. The philosophy is that truth is best discovered by assembling a complete evidentiary picture, brick by brick. This approach trusts the jury to be rational actors, capable of giving each piece of evidence, no matter how minor, its proper weight. It is an information-rich model grounded in a deep faith in the adversarial process and the competence of the fact-finder. The Wigmorean counterargument, however, is that this flood of information can paradoxically undermine accuracy. By admitting evidence that is only slightly probative but carries a high risk of unfair prejudice, the rule can invite verdicts based on emotion, cognitive bias, or improper character inferences. A more exacting standard of “legal relevance” would act as a protective filter, shielding the jury from low-value evidence that is more likely to confuse than to clarify. The choice between these two models hinges on a fundamental belief about the jury: are they sophisticated processors of all data, or are they fallible humans who need to be protected from their own biases?

Next, consider the impact on trial legitimacy. How does the relevance standard affect public trust in the judicial process? Rule 401’s inclusivity can be seen as a pillar of legitimacy. It creates a transparent process where parties are given wide latitude to tell their story, fostering a sense that all pertinent information is on the table and that everyone has had their day in court. This openness can make the final verdict feel more earned and just. Conversely, this same permissiveness can degrade legitimacy. When trials become sprawling, drawn-out affairs filled with collateral issues and tangential evidence, they can appear unfocused and inefficient. More troublingly, a low relevance bar can be exploited to engage in character assassination or to introduce inflammatory evidence that serves no real purpose other than to smear an opponent. A system that allows this can look less like a dignified search for truth and more like a mud-wrestling match, eroding public confidence. A stricter, Wigmorean standard could bolster legitimacy by keeping the proceedings tightly focused on the core facts in dispute, thereby protecting the process and its participants from abuse.

Finally, there is the pragmatic question of systemic efficiency. Here, the case for a more demanding relevance threshold seems obvious. Wigmore was explicitly motivated by a desire to avoid wasting the court’s time on trivialities. A rule that requires evidence to have a certain minimum quantum of probative force would necessarily lead to shorter, more focused trials. It would streamline discovery and motion practice by culling marginal evidence from the outset. Yet, there is a plausible counterargument that Rule 401 contains its own unique efficiency. By establishing a clear, low, and objective threshold, it reduces the amount of time and energy spent litigating admissibility. The rule creates a simple, non-discretionary initial screen: if there is any logical connection, the evidence is in. This pushes the more complex, time-consuming, and discretionary analysis of the evidence’s utility versus its potential harms to Rule 403, where it belongs. This structural separation can be seen as a more efficient allocation of judicial resources than a system that requires a searching, subjective “plus value” inquiry for every single piece of evidence.

This leaves us with a clear set of competing values. The Thayerian model of Rule 401 favors broad information access and jury autonomy, potentially at the expense of efficiency and with a greater risk of prejudice. The Wigmorean alternative, in contrast, prioritizes efficiency and judicial protection of the jury, but at the cost of excluding potentially helpful information. There is no single, objectively correct answer as to how to balance these competing interests. What is essential, however, is that we are intellectually honest and transparent about which values we are choosing to prioritize when we calibrate our standard for relevance, and why we are making that choice.

The Allocation of Decisionmaking Authority in the Courtroom

The second core issue Bhasin’s work tees up is how our calibration of evidentiary relevance directly implicates the allocation of decision-making authority in the courtroom. The debate over the height of the relevance bar isn’t just an academic fancy over the meaning of “any tendency.” At its core, it’s a debate about who we trust to construct the universe of facts a trial is built upon. Every choice about the standard of relevance is, ultimately, a choice about the distribution of power among different actors within our adjudicatory system.

By setting an intentionally low bar for relevance in Rule 401, the Federal Rules of Evidence place an immense amount of trust in the jury. This model enlarges the universe of admissible proof, giving jurors more “bricks” with the expectation that they have the capacity to weigh each one appropriately, disregard the biased or trivial, and build a coherent “wall” of facts. The judge’s role is limited to that of a minimalist gatekeeper, ensuring only a bare logical connection.

A higher, more exacting standard of “legal relevance” would contract the universe of admissible evidence. This model reflects a fundamentally different allocation of trust, shifting power from the jury to the judge. Here, we don’t trust the jury to properly weigh every brick; instead, we trust the judge to police which bricks are even worthy of their consideration. The judge becomes a far more active arbiter, tasked with screening out evidence whose probative value is too slight to justify the risks of confusion or prejudice. And while this might seem like a solution to the biased admissions Bhasin identifies, her research also reveals its peril. If judges are already selectively applying the relevance standard based on their own standpoints and cultural priors, granting them even greater, more explicit gatekeeping authority could simply institutionalize those biases.

A third path, of course, is to shift power away from the ad hoc, case-by-case analysis of judges and juries altogether. This is the world of categorical exclusionary rules, such as rape shield laws or the specific evidentiary carveouts like Rules 407-415. This approach transfers authority to rulemakers, advisory committees, and ultimately (at the federal level) Congress. The goal is to identify predictable, recurring forms of problematic evidence and remove them from circulation by legislative fiat. But this, too, involves a trade-off in trust and carries unintended consequences. While such rules provide certainty, reliance on rulemakers gives rise to a host of additional risks. For one, it sacrifices the flexibility of contextual analysis. And rigid shield laws can sometimes be used to exclude evidence that is genuinely relevant and even essential to a defendant’s case. This path exchanges the risk of a judge’s or jury’s error in a specific case for the risk of a rulemaker’s error across all cases.

Ultimately, then, we’re once more forced to confront the reality that there is no perfectly neutral or objective way to structure the flow of information at trial. Any meaningful conversation about evidentiary relevance must therefore begin with a candid acknowledgment of what is truly at stake, which is the delicate and contestable allocation of trust among the core actors in our adjudicatory system. For too long, we have treated Rule 401 as an unchangeable fixture of the legal landscape. I’m certainly guilty of ascribing to this default assumption. We should instead see Rule 401 for what it is, one possible answer to a very difficult question. It is time we became more intentional and transparent about the normative tradeoffs at stake, rather than defaulting to Rule 401’s inevitability. The debate is certainly worth having, and we owe Bhasin a debt of gratitude for teeing it up.

See Also

• Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer’s Triumph
• G. Alexander Nunn, The Incoherence of Evidence Law
• Jasmine Gonzales Rose, Toward a Critical Race Theory of Evidence Law
• John MacArthur Maguire and Charles S. S. Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility
• Peter Tillers, Modern Theories of Relevancy, 1931-1981
• Stanford Encyclopedia of Philosophy, The Legal Concept of Evidence
• William Conly, Determining Relevancy: Article IV of the Federal Rules of Evidence