ST. MARY'S LAW JOURNAL - UTA · st. mary's law journal articles a survey of law regarding the liability of manufacturers and sellers of drug products and medical devices ... kayl

ST. MARY'S LAW JOURNAL

ARTICLES

A SURVEY OF LAW REGARDING THE LIABILITY OF MANUFACTURERS AND SELLERS OF DRUG PRODUCTS AND MEDICAL DEVICES

Btyan J. Maedgen Sheree Lynn McCaII ............................................. AN EPISTEMIC APPROACH TO LEGAL RELEVANCE Keith Burgess-Jackson ............................................ THE INTERNATIONAL COMPONENT OF TEXAS WATER LAW Darcy Alan Frown felter .......................................... PSYCHOLOGICAL HARM AND HEART INJURIES

RELATED TO STRAIN OR EXERTION IN WORKERS' COMPENSATION LITIGATION

Bob Earp ........................................................ CASENOTES CRIMINAL LAW-FOURTEENTH AMENDMENT DUE PROCESS CLAUSE-

PREPONDERANCE STANDARD SATISFIES DUE PROCESS WHERE STATE MAKES VISIBLE POSSESSION OF FIREARM SENTENCING FACTOR RATHER THAN COMPONENT OF CRIME. McMillan v. Pennsylvania, - U.S. -, 106 S. Ct. 2411,91 L. Ed. 2d 67 (1986). Michael P. Kopech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CR~MINAL LAW-SEARCH AND SEIZURE-WARRANTLESS AERIAL SURVEILLANCE OF

PRIVATE RESIDENCE'S CURTILAGE FROM ALTITUDE OF 1000 FEET DOES NOT IMPLICATE FOURTH AMENDMENT. California v. Ciraolo, - U.S. -, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Craig A. Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TOR~DEFAMAT~ON-PRIVATE FIGURE PLAINTIFF MUST SHOW NOT ONLY FAULT AS TO FALSITY BUT ALSO FALSITY ITSELF TO RECOVER DAMAGES FOR DEFAMATORY STATEMENTS MADE BY MEDIA DEFENDANT ON MAITERS OF

PUBLIC CONCERN. Philadelphia Newspapers, Inc. v. Hepps, - U.S. -, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986). KayL. Reamey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CONSTITUTIONAL LAW-FREE EXERCISE CLAUSE-APPROPRIATE MILITARY OFFICIALS MAY PROHIBIT THE WEARING OF VISIBLE RELIGIOUS APPAREL IN THE INTEREST OF PRESERVING UNIFORMITY. Goldman v. Weinberger, - U.S. -, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986). Stephan B. Rogers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DAMAGES--PREJUDGMENT INTEREST-PREJUDGMENT INTEREST IN TEXAS CONTRACT CASES LIMITED TO SIX PERCENT STATUTORY RATE UNLESS OTHERWISE SPECIFIED IN CONTRACT. Missouri-Kansas-Texas R.R. v. Fiberglass Insulators, 707 S.W.2.d 943 (Tex. App.-Houston [lst Dist.] 1986, writ ref'd n.r.e.) Mark P. Brewster ........................................................ 633

RECENT DEVELOPMENTS CRIMINAL PROCEDURE-ACCOMPLICE WITNESS TESTIMONY-WHERE STATE

CONVICTS ACCUSED OF CAPITAL MURDER BY RELIANCE UPON ACCOMPLICE WITNESS' TESTIMONY, THAT TESTIMONY NEED ONLY BE CORROBORATED BY OTHER EVIDENCE WHICH TENDS TO CONNECT DEFENDANT WITH OFFENSE COMMITTED. Holladay v. State, 709 S.W.2d 194 (Tex. Crim. App. 1986). Mark David Albertson .................................................... 657

EDUCATION-HOUSE BILL 72-TEACHER COMPETENCY TESTING IS VALID EXERCISE OF STATE LEGISLATIVE POLICE POWER. Texas State Teacher's A s h v. State, 711 S.W.2d 421 (Tex. App. - Austin 1986, no writ). LauraD.Heard ......................................................... 661

The ST. MARY'S LAW JOURNAL (USPS 992540) is published quarterly by the students of St. Mary's University School of Law. Subscription price for Volume 18 is $25.00. Single issues available at $7.50; symposium issue at $9.00; index to volumes 1-15 at $5.00. Reprints of selected articles, comments, and notes are also available from the JOURNAL. Texas residents add 5'/2% sales tax. Second class postage paid at San Antonio, Texas and at additional mailing offices. Subscriptions to the ST. MARY'S LAW JOURNAL are considered to be continuous, and, absent receipt of notice to the contrary, will be automatically renewed each year. Issues prior to Volume 17 are available from Fred B. Rothman & Co., 10368 West Centennial Road, Littleton, Colorado 80123.

The JOURNAL welcomes the submission of unsolicited manuscripts. Submissions must be typed and double-spaced with footnotes at the end of the article. All citations must conform to A UNIFORM SYSTEM OF CITATION (14th ed. 1986). Manuscripts should be addressed to Articles Editor. We regret that manuscripts cannot be returned except upon receipt of postage and handling fees of 50 cents for third class or $2.50 for first class mail.

All communications should be addressed to ST. MARY'S LAW JOURNAL, One Carnino Santa Maria, San Antonio, Texas, 78284-0400. Telephone: (512) 436-3439.

Copyright 1986, ST. MARY'S UNIVERSITY OF SAN ANTONIO All rights reserved.

AN EPlSTEMlC APPROACH TO LEGAL RELEVANCE*

KEITH BURGESS-JACKSONe*

I. Introduction. ........................................... 463 11. The American Law of Relevance ....................... 465

111. Relevance, Materiality, and Truth ...................... 472 IV. The Implicit Value Structure of the Law of Relevance.. . 475 V. Conclusion ............................................. 479

Even were it theoretically possible to ascertain truth with a fair degree of certainty, it is doubtful whether the judicial system and rules of evidence would be designed to do so. Trials in our judicial system are intended to do more than merely determine what happened. Adjudica- tion is a practical enterprise serving a variety of functions. Among the goals-in addition to truth finding-which the rules of procedure and evidence in this country have sought to satisfy are economizing of re- sources, inspiring confidence, supporting independent social policies, permitting ease in prediction and application, adding to the efficiency of the entire legal system, and tranquilizing disputants.

-Jack B. Weinstein'

All American jurisdictions employ rules of evidence to determine what may and what may not be admitted at trial. Ostensibly, these rules of evidence are designed to promote the discovery of truth, but a closer examination reveals that these rules serve other purposes as

* Copyright (O) 1987 by Keith Burgess-Jackson. All rights reserved. ** A.B., 1979, The University of Michigan-Flint; M.A., 1983, Wayne State University;

J.D., 1983, Wayne State University Law School; M.A., 1985, The University of Arizona; Ph.D. Candidate, The University of Arizona, Department of Philosophy; Member, State Bars of Michigan and Arizona. The author would like to thank Alvin I. Goldman of the Ui~iversity of Arizona for reading and commenting on an earlier draft of this article. This article is dedi- cated to the Memory of Keith A. Basherian (1958-1982).

1. Weinstein, Some Difficulties in Devising Rulesfor Determining Truth in Judicial Trials, 66 COLUM. L. REV. 223, 241 (1966). Weinstein is now Chief Judge of the United States District Court for the Eastern District of New York.

464 ST MARY'S LAW JOURNAL [Vol. 18:463

well. In this article, a particular set of rules of evidence-those governing legal relevance-is analyzed from an epistemic standp~int.~ It will be shown that the rules of relevance employed by American jurisdictions serve a multitude of purposes, ranging from truth seeking, to protecting the interests of litigants, to promoting fairness. The law of relevance is, in short, multi-valued. But does the law of relevance have an implicit rationale or structure? Is there some single, overriding value that permeates this set of rules? This article argues that there is such a dominant value; the law of relevance serves primarily, though not exclusively, the goal of truth seeking.

Before undertaking the analysis, let us distinguish two sorts of inquiry. The first inquiry deals with the objects of evaluation, and the second, the criteria of evaluation. With respect to the rules of relevance, or rules of evidence generally, there are three possible objects of evaluation: (1) the rules themselves, (2) the institutions in which the rules operate, and (3) the processes through which the rules are a ~ p l i e d . ~ In this article, emphasis is placed on the first of these objects-the rules themselves. The rules of relevance are considered in the abstract, apart from either their application or the persons who apply them. The reason for this is simple. Until a person knows ex- actly what the rules of relevance require or prohibit, he or she can never understand the subtleties of applying these rules in concrete set- tings. As used in this article, the phrase "rules of evidence" means that set of rules governing the admission of evidence at trial, whether civil, administrative, or criminal in n a t ~ r e . ~

2. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 3 (1986) ("epistemics" defined as multidisciplinary epistemology). Epistemology is the branch of philosophy which is "concerned with the nature and scope of knowledge, its presumptions and basis, and the general reliability of claims to knowledge." See Hamlyn, History of Epistemology, in 3 THE ENCYCLO- PEDIA OF PHILOSOPHY 8, 8-9 (P. Edwards ed. 1967 & 1972 reprint). Due to the current debate concerning the nature, scope, and limits of epistemology among philosophers and psy- chologists, Hamlyn's definition should be questioned.

3. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 21 (1986). Goldman lists the following as "candidates for epistemic appraisal": beliefs and other dogmatic attitudes, methods, cognitive processes, speech acts, speeches, articles, books, institutional arrangements, and social structures and processes. Id. Although Goldman does not specifically mention rules of evidence in his book (the first of a projected two-volume work), it is clear that he would consider them to be appropriate objects of epistemic evaluation.

4. Other institutions besides courts employ rules of evidence. Examples are legislative bodies, private mediation or arbitration services, and professional organizations. Individuals, too, employ rules of evidence whenever they believe or refrain from believing certain propositions, although such a decision is rarely couched in these terms.

19861 EPISTEMIC APPROACH TO LEGAL RELEVANCE 465

A myriad of evaluative criteria exists. The rules of evidence can be evaluated in terms of their propensity to produce the truth, to protect the interests of the litigants, to promote fairness, to secure efficient resolutions of disputes, or even to mirror commonsense judgments. In this article, the focus is on the truth-seeking (that is, veritistic) nature of the rules of relevance. Truth, as shall be seen, has at least three basic subcriteria. The first of these is the comparative reliability of various rules of relevance in discovering the truth. The second subcriterion is the ability of the rules of evidence to generate large numbers of truths (specifically, truths in which we, as a society or as participants in the legal system, are interested). The third, and final, subcriterion is the ability of the rules of evidence to produce truths quickly or efficientlye5 These criteria and subcriteria will be developed in Sections I11 and IV.

The law of relevance has a jumbled past. Concepts of relevance, once thought to be useful, have turned out, on analysis, to be incoher- ent.6 Indeed, some of the greatest minds in the history of evidence law have floundered in this area.' However, there is really no reason for confusion. The central concepts in the law of relevance are relevance, admissibility, materiality, and suficiency. The concept of relevance, in law as in logic, has to do with the relations among propositions. "Proposition P is relevant to proposition Q" means that the truth of P has some tendency, however minimal, to support the truth of Q-that P confirms Q.8 It is worth noting that relevance is

5. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 26-27 (1986) (discussing truth criterion and three subcriteria); see also A. Goldman, Foundations of Social Epistemics 34-37 (March 25, 1986) (unpublished manuscript) (discussing "reliability," "power," and "speed" as truth-linked standards to use in appraising social institutions and practices).

6. Compare MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 5 185, at 441 (E. Cleary 2d ed. 1972) (recommending abandoning term "legal relevance" rather than redefining it) with MCCORMICK ON EVIDENCE 5 185, at 548 n.45 (E. Cleary 3d ed. 1984) (discussing misleading nature of phrase "legal relevance" as blurring distinction between different types of evidence excluded on different grounds).

7. See Slough, Relevancy Unraveled, 5 U . KAN. L. REV. 1, 10-12 (1956) (even John Henry Wigmore confused concepts of logical and legal relevance).

8. Cf. FED. R. EVID. 401. "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." Id. "[Wlhatever naturally and logically tends to establish a fact in issue is relevant, and that which fails to qualify in this respect is not relevant." 1 JONES ON EVIDENCE: CIVIL AND CRIMINAL 5 4: 1, at 378 (S. Gard

466 ST. MARY'S LAW JOURNAL [Vol. 18:463

not concerned with the truth of propositions except in a derivative sense. Relevance is concerned, instead, with how propositions adhere logically to one another. For any two propositions, the truth of one is either relevant or irrelevant to the truth of the other. It makes no sense to say, for example, that P is more relevant than Q to the truth of R.9

The concept of admissibility is related, in a straightforward way, to the concept of relevance. Relevance is a necessary condition of admissibility. If any item of evidence is irrelevant, then it is inadmissible in a court of law.1° But relevance alone is not sufficient for admissibility, because some items of relevant evidence are inadmissible for various reasons. Sometimes the relationship between relevance and admissibility is phrased as follows: "All relevant evidence is admissible, except. . . ."I1 What this axiom means is that relevant evidence is presumptively or prima facie admissible. In other words, it is admissible unless other considerations render it inadmissible. This does not, however, make relevance sufficient for admissibility. All admissible evidence is relevant, but not all relevant evidence is admissible.

"Materiality," which has fallen into disfavor as a term of art in the law of relevance, means that an item of evidence is relevant to a particular issue before the court.12 Materiality is therefore a subclass of

6th ed. 1972); see also Lempert, Modeling Relevance, 75 MICH. L. REV. 1021 (1977) (discussing Bayes' theorem and regret matrices as tools for analyzing concept of relevance). On the Bayesian interpretation, Professor Lempert states:

Evidence is logically relevant only when the probability of finding that evidence given the truth of some hypothesis at issue in the case differs from the probability of finding the same evidence given the falsity of the hypothesis at issue. In a criminal trial, if a particular item of evidence is as likely to be found if the defendant is guilty as it is if he is innocent, the evidence is logically irrelevant on the issue of the defendant's guilt.

Id. at 1026. 9. See Slough, Relevancy Unraveled, 5 U. KAN. L. REV. 1 (1956). "A fact is relevant or

irrelevant; there is no middle ground." Id. at 2. 10. See FED. R. EVID. 402 ("Evidence which is not relevant is not admissible."). Trans-

posing, we get the proposition that admissibility presupposes relevance. 1 1. See FED. R. EVID. 402. The text of Rule 402 is as follows: "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." As one commentator has noted, "whiie relevancy is the first essential for admissibility, the exclusionary rules may make the evidence inadmissible, even though relevant." 1 JONES ON EVIDENCE: CIVIL AND CRIMI- NAL 4 4:5, at 391 n.42 (S. Gard 6th ed. 1972).

12. See Lone Star Gas Co. v. State, 137 Tex. 279, 313, 153 S.W.2d 681, 699-700 (1941) (evidence is relevant to proposition if it tends to prove or disprove any material fact about that proposition); see also MCCORMICK ON EVIDENCE 4 185, at 541 (E. Cleary 3d ed. 1984) (mate-


relevance. All material propositions are relevant, but not all relevant propositions are material. This relationship can be best seen by way of example. Suppose that person A is on trial for burglary. In order to show that A failed a social studies exam in the third grade, the prosecutor calls A's third-grade teacher as a witness. While the testimony of A's teacher is relevant to the proposition that A failed the social studies exam, the proposition that A failed the social studies exam is not before the court in the burglary trial. It has nothing to do with the burglary proceeding (barring some fantastic context). This bit of evidence is therefore relevant, but immaterial. Relevance is a necessary, but not a sufficient, condition of mateiiality.

The relationship between the concepts of admissibility and materiality is also straightforward. All admissible evidence is material. If an item of evidence is immaterial, either because it is irrelevant (relevance, recall, is a necessary condition of materiality) or, more specifically, because it is irrelevant to an issue before the court, then it is inadmissible. Here is an example of relevant, material, but inadmissible evidence. Suppose that B has slipped and fallen on C's icy sidewalk. B sues C in tort for compensatory damages. During the trial, B attempts to introduce evidence that shortly after the fall, C chipped the ice away from the sidewalk and spread rock salt around. The suggested inference is as follows: (1) C took subsequent remedial measures; therefore, probably (2) C was conscious of fault with respect to B's injury; therefore, probably (3) C was at fault with respect to B's injury. In other words, B introduces evidence of C's subsequent remedial measures in an attempt to support the claim of negligence.

B's evidence is relevant in the sense that, if true, it makes the truth of the "negligence" proposition more probable than it would otherwise be. The evidence is also material, because negligence, by hypothesis, is one of the issues before the court. But as the law of relevance now stands, evidence of C's subsequent actions is inadmissible.13 The

riality concerns relation between evidence offered and issues in case); Slough, Relevancy Un- raveled, 5 U . KAN. L. REV. 1 (1956). Professor Slough commented that one can determine what is in issue by "look[ing] to the pleadings, to rules of procedure and the substantive law." See id. at 5-6.

13. See Roosth & Genecov Prod. Co. v. White, 281 S.W.2d 333, 339 (Tex. Civ. App.- Texarkana 1955, writ ref'd n.r.e.) (evidence that drilling company had paid for re-erecting collapsed derrick was properly excluded as alleged basis for showing that company admitted liability for collapse); FED. R. EVID. 407. The text of Rule 407 is as follows:

468 ST MARY5 LAW JOURNAL [Vol. 18:463

evidence is inadmissible because admitting it would violate public policy.14 The argument goes as follows: We, as a society, should en- courage people to improve the safety of their premises and products. If the fact that people have made improvements can be used as evidence of their fault for prior accidents, then people will be deterred from taking such safety precautions. Therefore, evidence of subsequent remedial measures should not be admissible to show that the actor was at fault.15 Other exclusionary rules, rooted in public policy, will be considered shortly.

Finally, there is the concept of sufficiency, which is sometimes confused with the concept of admissibility.16 Admissibility deals with particular items of evidence, while sufficiency is concerned with the sum of evidence. In terms of the trial process, admissibility is deter- mined during trial, as evidence is being introduced; sufficiency is de- termined at the end of the process, when all evidence has been introduced. Surely, it cannot be a condition of admissibility that an item of evidence be sufficient to establish the proposition in question. Otherwise, very few items of evidence would be admissible. All that is required is that each item of evidence be relevant and material-that it have some tendency to prove or disprove a proposition before the court. When all of the evidence has been introduced, the factfinder (judge or jury, as the case may be) must determine whether it is sufficient. In making this sufficiency determination, some standard of

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

14. See Slough, Relevoncy Unroveled, 5 U . KAN. L. REV. 1, 14 (1956) (basis for common- law exclusion of subsequent remedial measures derived from social policy); MCCORMICK ON

EVIDENCE 5 275, at 815 (E. Cleary 3d ed. 1984) (predominant reason for excluding evidence of subsequent remedial measures is policy against discouraging taking safety precautions).

15. See FED. R. EVID. 407 advisory committee's note (exclusion "encourag[es] people to take, or at least [does] not discourage them from taking, steps in furtherance of added safety"); H. WENDORF & D. SCHLUETER, TEXAS RULES OF EVIDENCE MANUAL 48 (1983) (rule en- courages making of repairs without fear that such actions may be used to establish liability); see olso Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F.2d 883, 887 (5th Cir. 1983) (admitting evidence of later product change, in products liability action, discourages future product improvement).

16. See, e.g., MCCORMICK ON EVIDENCE 5 185, at 542-43 (E. Cleary 3d ed. 1984); 1 JONES ON EVIDENCE: CIVIL AND CRIMINAL 5 4:1, at 380 (S. Gard 6th ed. 1972); Slough, Relevoncy Unroveled, 5 U . KAN. L. REV. 1, 7-10 (1956).

19861 EPISTZMIC APPROACH TO LEGAL RELEVANCE 469

proof must be employed. In civil trials, the standard is proof by a preponderance of the evidence;'' in criminal trials, the standard is proof beyond a reasonable doubt.I8

The logical relationships among relevance (R), admissibility (A), and materiality (M) can be illustrated by means of a Venn diagram (shaded areas represent empty classes, while an "x" in an area repre- sents a nonempty class):

As this diagram shows, admissible evidence is a subset of material evidence, which in turn is a subset of relevant evidence. It follows, logically, that admissible evidence is a subset of relevant evidence.I9 Each of these subset relations, moreover, is logically proper. As the law of relevance now stands, some relevant evidence is immaterial (for instance, evidence that A, in the example above, failed a third grade social studies exam), while some material evidence is inadmissible (for instance, evidence that C, in the example above, undertook subsequent remedial measures). Whether the sum of admissible evidence is sufficient depends, as we saw, on the appropriate standard of proof.

Not all relevant, material evidence is admissible, as illustrated by the icy-sidewalk example. The set of rules which exclude relevant, material evidence from consideration by the factfinder can be labelled "exclusionary rules." There are many exclusionary rules. First, there

17. See generally MCCORMICK ON EVIDENCE 5 339, at 956-59 (E. Cleary 3d ed. 1984). 18. See id. $ 341, at 962-64. A third standard of proof, proof by clear and convincing

evidence, is sometimes used in certain civil actions, such as those involving charges of undue influence or suits for specific performance of an oral contract. See id. 5 340, at 960.

19. Formally: If all A is M and all M is R, then all A is R.

470 ST. MAR Y5 LAW JOURNAL [Vol. 18:463

are those rules which exclude evidence because it will unfairly prejudice the factfinder against a party.20 Second, there are those rules which exclude evidence because it will confuse or mislead the fa~tfinder.~' Third, there are rules which exclude cumulative evidence or evidence which, if presented, will cause undue trial delay.22 In addition to these three basic exclusionary rules, there are several others which are also based on public policy. One cannot, except for limited purposes, introduce evidence of subsequent remedial meas~res,~) the character of a criminal defendant,24 offers of a party to compromi~e,~~ payment of medical or similar expenses by a party,26 the fact that a party has liability insuran~e,~' or, in rape cases, the victim's past sexual behavior.2s

An example of a public policy oriented exclusionary rule illustrates the point. In Shipman v. State,29 a recent Texas case, the defendant was charged with driving a motor vehicle on a public highway while intoxicated (DWI). At trial, the prosecutor asked the defendant if he had ever been convicted of DWI.)O The defendant admitted that he

20. See Missouri-Kansas-Texas R.R. v. Alvarez, 703 S.W.2d 367, 370 (Tex. App.-Aus- tin 1986, no writ); FED. R. EVID. 403 (evidence may be excluded if probative value substantially outweighed by danger of unfair prejudice).

21. See Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 521-22 (5th Cir. 1984); FED. R. EVID. 403 (evidence may be excluded if probative value substantially outweighed by danger of confusing issues or misleading jury).

22. See Sinko v. City of San Antonio, 702 S.W.2d 201, 205 (Tex. A p p . S a n Antonio 1985, writ ref'd n.r.e.); FED. R. EVID. 403 (evidence may be excluded if probative value substantially outweighed by possibility of unnecessary delay, waste of time, or needless presenta- tion of cumulative evidence).

23. See FED. R. EVID. 407 (evidence of subsequent remedial measures not admissible to prove liability).

24. See FED. R. EVID. 404 (evidence of defendant's character not admissible to prove, on certain occasion, that defendant acted in conformity with character).

25. See FED. R. EVID. 408 (evidence of offers or attempts to compromise not admissible to prove liability).

26. See FED. R. EVID. 409 (evidence of paying, or offering to pay, medical expenses not admissible to prove liability).

27. See FED. R. EVID. 41 1 (evidence of insurance coverage not admissible to prove negligence).

28. See FED. R. EVID. 412 (evidence of victim's previous sexual behavior not admissible). But see TEX. PENAL CODE ANN. 8 22.065 (Vernon Supp. 1986) (reputation evidence, opinion evidence, and evidence of specific instances of sexual conduct admissible if probative value not outweighed by prejudicial effect).

29. 604 S.W.2d 182 (Tex. Crim. App. 1980). 30. See id. at 183 (prosecutor asked question in order to impeach defendant's prior testi-

mony that he had not been intoxicated in two years preceding instant charge).

19861 EPISTEMICAPPROACHTOLEGALRELEVANCE 471

had.31 Following conviction by a jury, the defendant appealed, claim- ing that it was error for the prosecutor to raise the issue of his prior DWI convictions during trial. The Texas Court of Criminal Appeals agreed that this action constituted reversible error.32 As the court put it, "Whether [the defendant] had been intoxicated two years previous to the offense in question is a matter which is not legally relevant to the offense for which he was being tried. . . ."33 The Court of Crimi- nal Appeals reversed the defendant's conviction and remanded the case for a new

The proposition sought to be established by the prosecutor in Ship- man was, roughly, the following: that the defendant was DWI on a particular occasion-namely, when he was arrested. In support of this proposition, the prosecutor introduced evidence that the defendant had been convicted of DWI on a prior occasion. Logically, the latter proposition is relevant to the former. The fact that the defendant had been convicted of DWI on one or more previous occasions has some tendency, however minimal, to establish that he drove while intoxicated on this particular occasion.35 The proposition is also material, for one of the issues before the court was whether the defendant was DWI on the occasion in question. Nonetheless, the evidence was held to be inadmissible. For reasons of public policy, "[elvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity t h e r e ~ i t h . " ~ ~ It is thought that if such evidence is admitted, factfinders will convict individuals on the basis of bad character traits, rather than (as we should like) for committing legally proscribed action^.^'

3 1. See id. 32. See id. at 185 (impeachment of defendant resulted in vague answer to question relat-

ing to immaterial, collateral matter). 33. Id. at 184 (emphasis added). 34. See id. (admitting evidence of prior conviction cannot be classified as harmless error). 35. Cf: FED. R. EVID. 401 advisory committee's notes (characteristic of relevant evidence

is that it tends to prove matter sought to be proved). To understand this, imagine that you are a veracious inquirer-that you are concerned only with ascertaining the truth (and not, for example, with minimizing opportunity costs). Would you prefer to know, rather than not know, that the defendant had previously been convicted of DWI? Surely you would. This is one way to test for relevance. A veracious inquirer is interested in all, and only, relevant evidence.

36. FED. R. EVID. 404(b). 37. See FED. R. EVID. 404 advisory committee's notes (quoting report of California Law

Revision Commission). Character evidence is of slight probative value and may be very prejudicial. It tends to

ST. MARY'S LAW JOURNAL [Vol. 18:463

Given this characterization of the law of relevance, what can be said concerning its underlying rationale or structure? What set of values does the law of relevance embody? Obviously, the law of relevance is concerned first and foremost with the discovery of truth.38 The concept of relevance is designed to link one proposition to another-not just on any grounds, but on grounds that the truth of one proposition makes the truth of the other proposition more probable. If we want to know whether proposition Q is true, then, other things being equal, we want to know whether there are any true propositions that confirm Q. In this sense, courts are veracious inquirers; they are interested in all and only relevant evidence. But notice: Not all relevant propositions are admissible at trial. Some relevant propositions, as demonstrated, are excluded because they are immaterial, and thus not properly before the court. This exclusion implies some limitation on the truth-seeking character of courts. Some effort, therefore, should be made to discover just what these limitations are.

All judicial proceedings, by nature, involve conflicts, either between citizens or between the state and a citizen. Depending on how one defines the term "conflict," the conflict may or may not be resolved by the time court proceedings take place. In a sense, by the time tort litigants arrive in court, the conflict is over. The judicial proceeding is designed merely to compensate one of the parties for injuries caused by the other (provided, of course, that the facts warrant compensa- t i ~ n ) . ~ ~ This injury itself can never be erased. The same is true of criminal defendants and their victims.

Since the point of any proceeding is to resolve the conflict before the court, the court is not interested in truth seeking generally; rather, it is concerned with truth only insofar as it relates to the conflict at

distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.

Id. 38. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 17 (1986) (law of relevance re-

lates to forming beliefs; specifically, beliefs in true propositions). 39. See Golding, On the Adversary System and Justice, in PHILOSOPHICAL LAW 98 (R.

Bronaugh ed. 1978). Golding also notes that "[tlhe dispute that is settled by the third party [the court] is not the original conflict, with all its overtones and complexities, but rather the controversy that is presented by the parties for resolution." See id. at 103.


hand. Thus, if D is sued for allegedly breaching a contract to sell grain to E, the court is not concerned with such things as D's musical tastes, the mean noonday temperature in Guam, or the rate at which lemmings reproduce in the wild. The court is concerned with a narrow range of issues: first, whether D and E have entered into a bind- ing contract; second, if so, whether D has breached the contract's terms; third, if there has been a breached contract, whether E has suffered any injury; and fourth, if there has been a breached contract involving injury, whether D has any legally recognized defenses, such as impossibility, infancy, or mistake.

One is tempted to say that so long as the court is concerned with the truth of these issues, it cannot be criticized on grounds that it ignores truth seeking generally. The court, after all, cannot be ex- pected to discover all truths. Let the court confine itself to a certain subset of truths: those that are likely to resolve the immediate con- f l i ~ t . ~ ~ This reasoning, however, is flawed. Behind every legal proceeding is an event or set of events which forms the basis of the l a ~ s u i t . ~ ' (In the example above, these events include certain interac- tions between D and E). The goal of truth seeking is served only if the issues framed by the parties and the court accurately reflect the underlying events. If the process of framing issues is flawed in some way, then not only is the general goal of truth unattainable, but the goal of reaching truth on the matter at hand is unattainable. At best then, the court can only approximate the truth.

A recent case illustrates this point. Several members of the "Sanc- tuary Movement" were tried in federal court in Tucson, Arizona, for conspiring to violate (as well as actually violating) United States im-

40. See Weinstein, Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 COLUM. L. REV. 223 (1966). Weinstein reinforces this concept of narrowing the court's focus by noting that "[tlhe court, as a legal institution, is not even curious about much of what the witness could tell; if his knowledge is not relevant to a 'material' proposition the court will properly cut him off." See id. at 240.

41. See W. BENNETT & M. FELDMAN, RECONSTRUCTING REALITY IN THE COURT- ROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE 41 (1981). The authors refer to this as the "central action" of the case. According to Bennett and Feldman, trials are institu- tionalized "stories." Litigants hire agents (attorneys) to tell their stories for them, and jurors reconstruct what really happened in the case by (1) locating the central action, (2) drawing inferences concerning the central action and the characters involved in the action, and (3) in- terpreting, analyzing, and assessing the competing stories. See id. at 41-65.

474 ST MARY'S LAW JOURNAL [Vol. 18:463

migration laws.42 The prosecution's strategy was to narrow the issues in such a way that the factfinder (in this case, a jury) would have to convict the defendant^.^' The prosecutor framed the issue as follows: Did defendant F unlawfully conspire to violate United States immigration laws? From the prosecution's point of view, this was the only issue in the case.44 The defense's strategy, in contrast, was to frame the issues broadly. The defense framed the issues as follows: First, did defendant F unlawfully conspire to violate United States immigration laws? Second, if so, was F justified (on various grounds, includ- ing necessity) in conspiring to violate those laws? Third, even if F did unjustifiably conspire to violate the laws, are the laws themselves justified and was prosecution unfairly ~elective?~'

During trial, the judge made several evidentiary and substantive rulings on these questions.46 Usually, these rulings worked to the advantage of the prose~ution,~' resulting in a narrow issue for the factfinder: Did defendant F unlawfully conspire to violate United States immigration laws? Now, based on the argument suggested above, the goal of truth can be achieved in this case only by considering relevant evidence for and against this specific proposition. We cannot expect the court to discover all truths (the argument goes), or even very many of them; all we require is that the court determine the truth or falsity of this proposition. Nothing else is material. While truth is our ultimate goal, in this case, we are concerned with the truth of only one proposition: Did defendant F unlawfully conspire to violate United States immigration laws?

The problem with this argument is that by framing the issue so narrowly, the factfinder was restrained from considering a great deal

42. See N.Y. Times, May 2, 1986, at A19, col. 1; Arizona Daily Star, May 2, 1986, at A2, col. 1.

43. See N.Y. Times, May 2, 1986, at A19, col. 3 (prosecution contended case involved "smuggling, nothing more"). The prosecutor, after the trial, claimed that verdict was "based upon the law and . . . the facts." See id. at col. 1.

44. See id. at col. 3 (prosecution urged that moral and religious issues raised by defendants had no bearing on case).

45. See id. at wl. 3 ,4 (defense attorneys said moral and religious issues had to be considered along with immigration laws which provide "safe haven" for individuals "fear[ing]. . .persecutionv).

46. See id. at col. 4 (judge held moral and religious issues raised by defendants to be immaterial).

47. See id. (judge prohibited testimony on defendants' religious views or on conditions in Central America); see also Arizona Daily Star, May 15, 1986, at A1-A2, col. 3.


of logically relevant evidence. The events on which the Sanctuary trial was based were many and complex. Is it possible to discover truth-the way things really are or were-without considering such things as the motives with which the defendants acted, the beliefs that they had while acting, the political, economic, and social environment in which the Sanctuary Movement existed, and so forth? This article provides no answers to these questions; however, they are unimpor- tant in this context. The point is that by narrowing the issues for trial, it is possible to thwart, rather than promote, the search for

The truth-seeking task is to discover what really happened prior to trial. Arguably, this task is undermined to some extent by the process of framing legal issues. More research is necessary in order to determine the precise effect of the various methods of issue framing on the search for

IV. THE IMPLICIT VALUE STRUCTURE OF THE

LAW OF RELEVANCE

Rationales for the various exclusionary rules abound. Indeed, it is tempting to view these rules as a mishmash-as incorporating a variety of rationales. But many of the exclusionary rules are explicable, if not ultimately justifiable, on grounds that they promote the goal of truth. This is so despite the "official" justifications for many of these rules. In order to develop this line of thinking, it will be helpful to reexamine the three truth-linked subcriteria mentioned at the outset of this article: reliability, power, and speed.

Suppose that truth is the ultimate goal of our legal system and that we are confronted with the following choice: (1) We can choose a set of evidentiary rules R, which, when it produces a belief, generally produces a true belief, or (2) we can choose a set of evidentiary rules S, which, though not as reliable as R, almost always produces a belief of some sort. On what basis do we choose between these sets of rules? The goal of truth alone does not assist us in making this choice. This

48. See Arizona Daily Star, May 2, 1986, at A7 (Anthony Clark, one Sanctuary defendant, told reporters after his conviction that he "wasn't surprised at the jurors' conclusions, because they [the jurors] 'only had one-fourth of the facts.' ").

49. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 132 (1986) (importance of framing of problem cannot be underestimated); Weinstein, Some D~fjkulties in Devising Rules for Determining Truth in Judicial Trials, 66 COLUM. L. REV. 223,240-41 (1966) (simplification of issues convenient to trier of fact since so many issues are immaterial and so much evidence is irrelevant).


points out the fact that there are criteria or standards of evaluation within the veritistic framework. First, there is reliability, or the ability of a set of rules to produce a specified proportion of true beliefs. Second, there is power, or the ability of a set of rules to generate large numbers of true beliefs in which we are interested. Third, there is speed, or the ability of a set of rules to produce true beliefs quickly or efficiently. At times, we may be more interested in reliability, while at other times we will be more concerned with power or speed. Obvi- ously, there will have to be tradeoffs between these subcriteria in certain cases.50

In the law of relevance, as in the law of evidence generally, each of the three subcriteria plays a prominent role. Take the first kind of exclusionary rule, that which excludes evidence because it may unfairly prejudice the factfinder against a party. The natural way to think of this rule is in terms of fairness, a nonveritistic ~riterion.~' But on reflection, the rule can be construed as reliability promoting, and hence as truth promoting. Let us consider a concrete situation. Suppose that G is on trial for murder and that the prosecutor attempts to introduce a series of gruesome photographs. The photographs, let us say, depict a headless corpse. Defense counsel objects to the introduction of these photographs on grounds that they will unfairly prejudice the jurors against his or her client.

Clearly, the photographs constitute relevant, material evidence. One issue before the court is whether a person was killed (this is implicit in the murder charge), and the photographs (together with the proper foundation) provide circumstantial evidence that this is the case. But jurors are likely to be overcome emotionally by the photographs, and this would interfere with their factfinding mission. They may assign more weight to the photographs than is warranted by any kind of objective analysis. Hence, to admit the photographs as evidence would disrupt or interfere with the court's search for truth. What appears, then, as a rule based solely on fairness is rationally explicable in terms of truth. Other things being equal, a rule which

50. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 26-27 (1986). 51. See MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 5 185, at 439 n.1 (E.

Cleary 2d ed. 1972) (party is always damaged by admission of evidence contrary to party's position; this alone is not sufficient justification for exclusion of evidence). Only unfairly prejudicial evidence is excluded, not prejudicial evidence simpliciter.


excludes unfairly prejudicial evidence from consideration by the factfinder is more reliable than a rule which permits such evidence.

The rule which excludes evidence because such evidence may confuse or mislead the factfinder satisfies all three veritistic criteria.52 First, and most obviously, a jury which is confused or misled is unlikely to make a correct decision. Second, a confused or misled jury may not make a decision at all. (In a criminal case, this may result in a "hung" jury and a new trial.) Third, a confused or misled jury may make a decision late rather than early, thus thwarting the speedy and efficient search for truth. Confusion usually takes time to unravel. The rule excluding confusing or misleading evidence thus promotes the search for truth in several ways, just as does the rule excluding cumulative or redundant evidence.53 In the case of cumulative evidence, the evidence sought to be admitted has already been introduced; therefore, it would thwart the goals of making a decision (power) and making a decision fast (speed) if the evidence were admitted. But notice: Reliability is unaffected by this rule. A priori, a jury with redundant evidence is no more (or less) likely to make a correct decision than is a jury with nonredundant evidence.

Turning to the more substantive of the exclusionary rules, reliability, rather than power or speed, emerges as the primary consideration. With respect to character evidence, the traditional justification, as stated, was that the jury may convict on the basis of bad character traits rather than on the basis of legally proscribed actions. This rule can easily be cast in terms of fairness, justice, or some other ethical consideration. But it can also be explained and justified as a truth- seeking rule. If jurors assign more importance to character traits or dispositions than is warranted on objective grounds (for instance, on the basis of statistical analysis), then the rule which excludes such evidence promotes the goal of truth. We may simply distrust the estimation abilities of factfinders. Jurors (we may conclude) are unlikely to estimate the real likelihood that, with character trait T, a person

52. See Shepard v. United States, 290 U.S. 96, 104 (1933). Justice Cardozo, in rational- izing the exclusionary rule concerning confusing and misleading evidence, wrote: "When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out." See id. This statement suggests an ethical basis for the rule; namely, maintaining a "balance of advantage" between the parties.

53. See Reeve v. Dennett, 1 1 N.E. 938, 943-44 (Mass. 1887) (Justice Oliver Wendell Holmes stating that rule excluding cumulative or redundant evidence constituted "a conces- sion to the shortness of life").


will perform action U. If they were better at estimating probabilities, then we would have no need for such an exclusionary rule, at least on veritistic

Much the same analysis applies to the other exclusionary rules. In general, the problem with certain kinds of evidence is that factfinders (in most cases jurors) tend to distort and misinterpret probabilities. We exclude evidence of subsequent remedial measures, for instance, because jurors tend to attach too great an importance to this kind of evidence.55 Even in rape cases, where evidence of the victim's past sexual behavior is logically relevant to the issue of consent (the lack of which is an element of the crime), the basis for the exclusionary rule is that jurors tend to overestimate the likelihood that a promiscuous fe- male will consent to a given act of sexual in te rc~urse .~~ Given this juror propensity, and given that a reliable verdict is the goal of our legal system, the evidence is excluded. We may exclude it with regret, nonetheless, and with a full realization that relevant evidence is being withheld from the factfinder.

Nothing in this article suggests that truth is the only, or even the most important, value in the law of relevance. Truth, as Weinstein correctly points out, is but one of many judicial goals.57 The point of

54. See Lempert, Modeling Relevance, 75 MICH. L. REV. 1021, 1027 (1977). Estimation problems take several forms. The most obvious is that evidence may be given more weight than it deserves. The jurors may exaggerate the probative value of the evidence because they believe that the association between evidence and hypothesis is more powerful than it in fact is or because they are not estimating probative worth in the context that is proper given the facts of the case. . . . F[ederal] R[ule of] E[vidence] 404, the general rule excluding character evidence, is a relevance rule that can be justified, in part, on this ground.

Id. 55. See 1 M. UDALL & J. LIVERMORE, ARIZONA PRACTICE: LAW OF EVIDENCE 8 87,

at 194-96 (2d ed. 1982) (discussing alternative analysis to subsequent remedial measure rule). 56. See id. 5 82, at 167 (jurors may "use the evidence of promiscuity to punish the [vic-

tim] for perceived sexual misconduct") (emphasis added); see also FED. R. EVID. 412 congres- sional discussion (statement of Representative Mann)(rule furthers society's interest in obtaining fair trial by excluding "unduly prejudicial evidence" which may "becloud the issues before the jury").

57. See Golding, On the Adversaly System and Justice, in PHILOSOPHICAL LAW 98, 118 (R. Bronaugh ed. 1978) (torture would be justified if discovering truth were sole aim of our judicial system); Weinstein, Some Di'culties in Devising Rules for Determining Truth in Judi- cial Trials, 66 COLUM. L. REV. 223,228 (1966) (truth-finding capability of rules of evidence is fundamental concern of rules' drafters). But see Johnsen, Wealth Is Value, 15 J . LEGAL STUD. 263 (1986). "Social wealth maximization also requires the judiciary to minimize the wst im- posed on the parties in bringing forth evidence. An entire body of law-the law of e v i d e n c e has evolved to minimize the social cost of measuring the parties' conduct." Id. at 282.


this section of the article is to show that implicit in the law of relevance is a structure which has truth as a primary or overriding value. The entire body of relevance law is explicable, and perhaps even justifiable, on grounds that it serves the goal of truth seeking. But this is consistent with the existence of other values. Some exclusionary rules may have multiple justification^.'^ The task of social epistemics, as conceived by Goldman and others, is not to reduce all values to one or even a few, but to demonstrate the utility of employing epistemic criteria (such as truth) to a wide range of social practices and institution^.'^

Epistemics, understood as multidisciplinary epistem~logy,~~ provides a useful approach to the body of evidentiary rules known as the "rules of relevance." Using truth as the criterion of evaluation, we have seen that the central concepts in the law of relevance not only make sense, but cohere well with one another. The concept of relevance ensures that veritistically unrelated propositions are inadmissible at trial, while the concept of materiality limits the court to a narrow range of propositions or issues. More work needs to be done to determine just how the issue-framing process affects the search for truth. As for the various exclusionary rules embodied by the law of relevance, we have seen that, while these rules are typically given a wide range of justifications, many of them have, at bottom, a truth- linked rati~nale.~' This does not mean that exclusionary rules cannot

58. See Lempert, Modeling Relevance, 75 MICH. L. REV. 1021, 1028 n.6 (1977). Profes- sor Lempert later admits that "there are aspects of, and justifications for, the relevance rules that have nothing to do with rational evaluation of evidence." Id. at 1055.

59. See A. Goldman, Foundations of Social Epistemics 29, 31 (March 25, 1986) (unpublished manuscript).

60. See A. GOLDMAN, EPISTEMOLOGY AND COGNITION 9 (1986). As Professor Goldman asserts: "The aim of social epistemics is to assess the bearing of alternate communi- cational activities and institutions on the verific properties of groups, committees, and society at large. It seeks to assess the contribution of these activities to ver13c social outcomes." A. Goldman, Communication, Rhetoric, Argument, and Social Epistemics 4 (March 25, 1986) (unpublished manuscript)(emphasis added).

61. See Weinstein, Some D ~ ~ c u l t i e s in Devising Rules for Determining Truth in Judicial Trials, 66 COLUM. L. REV. 223, 228 (1966). Professor (now Judge) Weinstein claims that when values conflict, "the court's truth-finding function should receive primary emphasis except when a constitutional limitation requires subservience to some extrinsic public policy." See id. at 246 (emphasis in original); see also Grano, Implementing the Objectives of Procedural Reform: The Proposed Michigan Rules of Criminal Procedure-Part I , 32 WAYNE L. REV.


be justified on other g r o u n d ~ n l y that they can be justified on veritistic grounds. The rules of relevance, therefore, have an implicit truth-linked value structure.

1007, 101 1 (1986) (primary objective of procedural rules "should be to facilitate the discovery of truth") (emphasis added). In this article, I make no claim concerning the relative importance of the values underlying the law of relevance. My objective has been descriptive rather than evaluative.

Documents

ST. MARY'S LAW JOURNAL - UTA · st. mary's law journal articles a survey of law regarding the liability of manufacturers and sellers of drug products and medical devices ... kayl