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Part I Foundations Relevance And Core Exclusions

G. Alexander Nunn, Part I Foundations Relevance And Core Exclusions in Nunn on Evidence (2025), available at https://nunn.law/part-i-foundations-relevance-and-core-exclusions. | View history

Part I presents fundamental concepts, each building upon the last, to provide a foundational toolkit for understanding evidence. The doctrines are presented from a broad perspective, moving towards more specific principles. The aim is to ensure that by the end of this Part, readers possess a clear understanding of why evidence is regulated, what makes it potentially admissible, how societal policies sometimes override pure truth-seeking, and how the human elements of character and testimony are managed within the adversarial system.

Chapter 1: Unveiling the World of Evidence Law – Its Philosophy, History, and Key Players

Chapter 1 introduces the essence of evidence law. This chapter addresses the core philosophies underlying evidence rules, primarily the goals of accurately determining truth while upholding fairness and protecting societal values. The chapter examines the aims of evidence rules and the balance between truth-seeking and procedural efficiency and justice. The chapter also charts the historical evolution of evidence law, tracing its path from the common law traditions, with their emphasis on jury control and oral testimony, to the modern codified systems prevalent today, most notably the Federal Rules of Evidence (FRE) in the United States. This historical context explains the origins and evolution of current rules.

Chapter 1 also introduces the key participants in the courtroom. It defines the roles of the judge as the gatekeeper of evidence; the jury as the fact-finder; attorneys in presenting and challenging evidence; and witnesses in providing testimony. The interaction between these participants is central to trial evidence. Understanding their roles is key to seeing how evidence rules function in practice.

Chapter 2: Relevance – The Indispensable Gateway to Admissibility

Chapter 2 introduces the cornerstone of evidence admissibility: relevance. For information to be evidence, it must be relevant to the case. This chapter explains relevance, defined as evidence tending to make a consequential fact more or less probable. This principle is the first filter for all potential evidence.

However, mere logical relevance is not always enough to secure admission. Chapter 2 introduces the balancing test, as in Rule 403 of the Federal Rules of Evidence. This rule allows exclusion of relevant evidence if its probative value is substantially outweighed by dangers such as the risk of unfair prejudice (arousing emotional or irrational responses from the jury), confusing the issues, misleading the jury, causing undue delay, wasting time, or needlessly presenting cumulative evidence. This balancing is a key skill for trial lawyers and central to judicial evidence decisions. Understanding relevance and its balancing test is fundamental, as these concepts affect nearly all other evidence rules.

Chapter 3: Specialized Relevance Rules – When Social Policy Tempers the Search for Truth

Chapter 3 examines rules where social policy leads to excluding otherwise relevant evidence. These “specialized relevance rules” show that truth-seeking can be secondary to other societal interests. The chapter explains how these rules encourage certain behaviors or protect relationships by excluding some probative information.

Examples include the rule on subsequent remedial measures (FRE 407). This rule generally bars the admission of evidence that a party took measures after an accident or injury that would have made the earlier harm less likely to occur, if offered to prove negligence or culpable conduct. The rationale is to avoid deterring safety improvements. The chapter also covers rules on settlement discussions and offers to compromise (FRE 408). To encourage parties to resolve disputes out of court, evidence of settlement offers and conduct or statements made during compromise negotiations are typically inadmissible to prove or disprove the validity or amount of a disputed claim. Other policy-driven exclusions often discussed include those for payment of medical expenses (FRE 409) and liability insurance (FRE 411). These rules reflect a societal choice, balancing probative value against the policy’s intended greater good.

Chapter 4: The Labyrinth of Character Evidence – The Propensity Ban and Its Intricate Exceptions

Chapter 4 addresses character evidence, a nuanced and frequently litigated area. The chapter explains the general prohibition against using character evidence to prove conformity therewith on a particular occasion. This prohibition, central to FRE 404, is often called the “propensity ban.” The ban exists due to the risk of unfair prejudice: jurors might decide based on perceptions of a person’s character rather than on specific evidence. The concern is that evidence of past behavior or disposition could lead to verdicts based on character assumptions, not proof of conduct.

Despite this ban, numerous exceptions exist, creating complexity. The chapter details these exceptions, which vary by case context (civil or criminal) and the purpose of the evidence. For instance, in criminal cases, a defendant is often permitted to offer evidence of their own pertinent good character, and if they do so, the prosecution may rebut it. Similarly, rules exist concerning evidence of a victim’s character in certain circumstances, particularly in self-defense cases. The chapter also explores using prior acts for “non-propensity” purposes. For example, evidence of other crimes, wrongs, or acts may be admissible not to show that the person is of a certain character and therefore acted that way, but for other specific purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity (modus operandi), or absence of mistake or accident. Understanding these distinctions and methods of proving character (reputation, opinion, or specific acts) is a focus of this chapter.

Chapter 5: Testimonial Evidence – The Voice of the Trial

Chapter 5 focuses on testimonial evidence: information from witnesses. Rules governing witness testimony are important as trials often center on witness accounts. The chapter outlines witness competency requirements. Modern evidence law generally presumes that witnesses are competent to testify, provided they possess personal knowledge of the matter about which they are testifying and are capable of understanding the obligation of an oath or affirmation to testify truthfully. It discusses competency components: ability to perceive, remember, communicate, and the oath or affirmation requirement.

Next, it covers procedural rules for examining witnesses. This includes the structure of direct examination (questioning by the party who called the witness) and cross-examination (questioning by the opposing party). It addresses the appropriate scope of these examinations and the rules concerning the form of questions, particularly the general prohibition against leading questions on direct examination (with certain exceptions) and their permissibility on cross-examination. Using writings to refresh witness recollection is also covered.

Finally, Chapter 5 overviews impeachment techniques: methods to challenge witness credibility. Impeachment is a critical aspect of the adversarial process, allowing parties to test evidence veracity and reliability. The chapter explores various avenues of impeachment, such as demonstrating bias or interest, revealing defects in the witness’s capacity to perceive or recall, challenging the witness with their own prior inconsistent statements, and, under specific rules, attacking or supporting a witness’s character for truthfulness through reputation or opinion evidence, or by introducing evidence of certain prior criminal convictions. The goal of these rules is to ensure fair and orderly presentation of testimony and rigorous testing of its reliability, aiding the fact-finder.

Interrelation of Part I Concepts

These five chapters, though distinct, work together to create a foundation for further study in evidence law. Chapter 1 provides the ‘why’ and ‘who’ – the philosophical, historical, and practical context. Chapter 2 then introduces the universal ‘what’ – the fundamental requirement of relevance that governs all evidence. Chapter 3 refines this understanding by showing how relevance can be tempered by extrinsic social policies. Chapter 4 addresses a challenging and prejudicial category of evidence – character – establishing a general bar but carving out necessary exceptions. Finally, Chapter 5 focuses on the primary source of evidence in most trials – witness testimony – and the rules that ensure its competent elicitation and thorough scrutiny.

Together, these chapters provide analytical tools and a doctrinal framework for understanding complex rules on hearsay, expert testimony, privileges, and demonstrative evidence covered in subsequent study. Without this foundation, understanding advanced topics’ intricacies and policy rationales is more difficult. Part I is thus a cornerstone for education in evidence law.

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