A short primer on relevancy
The first question in determining if evidence is admissible -- always the first question -- is relevancy. Once relevancy is demonstrated, the next step is admissibility (e.g., statement of a party opponent, excited utterance, doctrine of chances) and then lastly, whether the probative value is substantially outweight by its prejudicial effect (i.e., OEC 403.)
Normally, relevancy is easy. Does the evidence make a fact in dispute more or less likely?
Relevancy can, in some situations, have two prongs. Let's assume the evidence is only admissible if certain inferences are made. Inferences are okay, but speculation is not. But what if those inferences depend on a separate "fact" that in turn is merely an inference?
If the inference is only relevant if the separate fact is true, then the party seeking to offer the evidence must prove that separate fact before the evidence is admissible. Otherwise, there is improper speculation.
See these recent footnotes from State v. Jesse:
- 6 See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition”).
- 7 The line between permissible inferences and impermissible speculation is difficult to articulate with precision. The federal courts usefully have described that line in these terms:
- “The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.” Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).
If the evidence is being offered by the state, defense counsel MUST request a limiting instruction to be given at the time the evidence is presented to the jury. If no limiting instruction can successfully mitigate the substantial prejudice of admission, then the evidence must be excluded. Consequently, the court must decide what the limiting instruction would be prior to determining if the evidence is admissible. In this way, an inadequate limiting instruction can result in reversal, even if the evidence might be admissible if a proper instruction were given.