The Rim

A 1989 Ford and a 1991 Chevy collide at an intersection in the country. The owner of the Ford (F) claims that the owner of the Chevy (C) was speeding and did not slow down for the intersection. F's investigator found a rim from a headlight in a field 200 feet from the point of impact. F has an expert witness prepared to testify that in order for the headlight rim to have been thrown 200 feet the Chevy had to be going at least 75 mph. F puts the investigator on the stand; she testifies to finding the rim, specifies the precise spot where she found it, and identifies the rim she found. F then offers the rim in evidence. What ruling? How will the judge go about deciding?

Suppose F tells the judge about his intention to call the expert and outlines the testimony expected from the expert?

Does F need a witness first who can identify the rim as having come from a 1991 Chevy? From C's 1991 Chevy? Suppose C contests this proof with a witness who claims that the rim is from a 1987 Caddy? What ruling? By what procedure and by what standard does the judge go about deciding?

Rule 104(b) speaks of "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact.'' Does the relevancy of the rim depend upon a condition of fact?

Imagine the investigator when she first goes to the scene of this accident. She walks in the surrounding fields looking for evidence that will help her figure out what happened. She picks up a popsicle stick in the field. Is it relevant? She cannot imagine any connection it could have to the accident and discards it: irrelevant. She picks up a headlight rim. Is it relevant? She can imagine connections to the accident. She also recognizes that it might turn out to have nothing to do with the accident. Is it relevant? From her point of view, knowing what she knows at that time, it is relevant to what she is doing. She puts it in a plastic bag and adds it to the assemblage of evidence the significance of which she will explore further in trying to figure out what happened. The rim may, of course, turn out to be irrelevant, but only in a different context in which she knows things she does not know out there in the field.

Relevance thus has something to do with what we don't know: If we can imagine a coherent story about what happened that includes the types of evidence in question, then until we exclude that story from the possible, the evidence is relevant in the sense of Rule 401. Our investigator in the field considers the headlight relevant even though the connecting link she imagines at the time may seem very farfetched.

The idea of conditional relevance in Rule 104(b) addresses the degree of "farfetchedness'' of the connecting link. Unlike the investigator who can do further searches, the jurors will be limited to the evidence presented at the trial. If evidence is offered that connects to a possible conclusion about what happened by a link that is too farfetched, even considering all the rest of the evidence that will be offered, then the connecting link has failed the test of Rule 104(b) and the evidence will be excluded.

The judge, unlike the investigator, can ask counsel what the evidence is being offered to prove and what evidence exists to link the offered material to the issues in the case. This allows the judge to assess the degree of farfetchedness of the line of inference counsel presents in suggesting the relevance of the evidence to a material issue in the case. This judgment in the words of the rule, whether evidence is sufficient to support a findingembraces the idea that some lines of inference are unacceptably speculative while others are acceptably rational. The line between these two concepts is as elusive as the "reasonable person.'' The task for the judge, though, is clear. The judge screens the evidence offered by counsel so that the resulting assemblage of evidence consists of everything a reasonable person should consider in trying to figure out what happened. In performing this screening function, should the court be influenced by the nature of the proof or the function it will play at trial? For example, should the line between the "unacceptably speculative'' and "acceptably rational'' shift depending on the centrality of the proof to the key fact issues in the case or on its likely impact on the jury?