The Burned Butt

Auto accident tort action. D, by cross-examination, unsuccessfully sought to force from P the admissions that he was driving under the influence of liquor and at the time of the accident was attempting to light a cigarette. D also sought to testify that two days after the accident and after P's demolished vehicle had been removed ten miles from the scene of the accident, she found a slightly burned cigarette on the floorboard of P's vehicle. Should D's testimony be admitted? Why?

Does the presence of a slightly burned cigarette in P's car "prove'' that P was trying to light a cigarette at the time of the accident, or even that P was smoking at the time? Does this evidence alone make it more probable than not that P is even a smoker? Even if the butt had been found on the floorboard of P's car immediately after the accident and before anyone else would have had a chance to drop the butt there, would it necessarily make any of those propositions more probable than not? But is this the test of relevance adopted by the Federal Rules? Under Rule 401, the test is: Does the offered evidence have any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence? But who judges the probabilities? And how? For most evidentiary questions of relevance there is no objective probabilistic frequency data. Probability must therefore refer to possible subjective assessments by judge or jury.