Document Type

Article

Publication Date

1994

Abstract

The concept of conditional relevance is an essential aspect of the classical model of evidentiary law. Some of the great scholars of evidence have endorsed and shaped it.1 Under Federal Rule of Evidence 104(b) it plays a crucial role in the division of responsibility between judge and jury,2 as well as in the application of the personal knowledge3 and authentication 4 requirements. And the Supreme Court has applied it with great force.5 In recent years, though, the concept has come under attack from several notable scholars. The late Vaughn Ball led the assault, calling the concept a "myth."'6 Peter Tillers, finding Ball's analysis to have some merit7 but not to be entirely satisfying, concludes that "[a]s a device for the regulation of fact-finding chores by the jury," the doctrine of conditional relevance "seems particularly invidious since it is so susceptible of witting or unwitting manipulation by judges who are distrustful of juries."8 Dale Nance has found Ball's criticisms convincing as applied to the hypotheticals and cases by which conditional relevance is usually explained; what "residual force" he perceives in the concept of conditional relevance should, he believes, be accounted for not on traditional grounds but as an application of the "best evidence principle." 9 Most recently, Ronald Allen, like Ball, has spoken of conditional relevance as a "myth";10 he contends that "there is no independent scope for the concept of conditional relevanc[e]." 11 In this article, I contend that, although the classical concept of conditional relevance is flawed in some respects, there is more to the concept than one might infer from the work of these writers.


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