Inquiry, Relevance, Rules of Exclusion, and Evidentiary Reform (A Contribution to a Festschrift for Margaret A. Berger)

15 Pages Posted: 25 Jul 2009 Last revised: 20 Aug 2009

Date Written: July 24, 2009

Abstract

Federal Rule of Evidence 401 appears on its face to adopt a “god-view” standard of relevance, which looks only to the relationship between a proffer (the probans) and a target issue (the probandum) in some cosmic sense. This approach is deeply flawed, and renders the resulting notion of “logical relevance” both illogical and unable to do any work whatsoever. Instead, any workable concept of relevance must be seen as resulting from a tri-partite relationship between and among the probans, the probandum and the processor, that is, the human who acts as the “decoder” of the information (factfinder). This approach renders “relevance” as much a function of the decoder as the code. It makes the program of applying “naturalized epistemology” to the legal system not merely desirable, but necessary. And it carries significant implications for how to approach the question of evidence reform.

Keywords: evidence, relevance, inference, naturalized epistemology

Suggested Citation

Risinger, D. Michael, Inquiry, Relevance, Rules of Exclusion, and Evidentiary Reform (A Contribution to a Festschrift for Margaret A. Berger) (July 24, 2009). Brooklyn Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1438794

D. Michael Risinger (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

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