Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Monday, August 6, 2012

The Asymmetries of Relevance

An interesting article in today's Detroit News reports that prosecutors hope to introduce into evidence at the corruption trial of former mayor Kwame Kilpatrick the fact that he received a C+ in a tax class that he took at the Detroit College of Law.  Several of the charges pending against Kilpatrick relate to his taxes, and prosecutors argue that his C+ is relevant to show that he was aware of his legal duty to report income for the years 2003-2008.

The argument raises a number of questions.  Does one need to go to law school and take a tax class in order to understand that income must be reported?  It seems like the sort of thing everyone knows without such training.  And, if this information is, for some reason, more arcane than it appears, then does a C+ really reflect much mastery of the material?  We can almost imagine the defendant saying "Well, I only got a C+.  That part about reporting income must be one of the things I missed."

But, for those of us who teach Evidence in law school, the most interesting question may sound something like this:  What if Kilpatrick had failed the course?  Would prosecutors concede that evidence of that fact should be admitted to show that the mayor was unaware of his legal obligations--indeed, demonstrably incapable of learning them?  In fact, would they conclude that in light of such compelling evidence they needed to drop the tax charges against him?

My guess is that many lawyers who would conclude that Kilpatrick's C+ passes the extremely forgiving standard for relevance would be reluctant to reach the same conclusion with respect to a failing grade.  In a sense, that is unremarkable.  Evidence that Kilpatrick took and passed a tax  course simply confirms what we would otherwise expect--that he knew about his duty to report income.  On the other hand, evidence that he failed the course would do little, if anything, to persuade us that this obligation came as news to him.

In this sense, Kilpatrick's law school grade may be an example of how relevance can behave asymmetrically in our analysis of evidence.  Evidence students often study another intriguing example of this in class: many courts hold that evidence of flight from arrest is relevant to show guilt; but few courts have shown any sympathy toward the argument that absence of flight is relevant to show innocence.  Why?  Because we don't expect people to try to escape when they're being arrested: when they do, it tells us something; when they don't, it tells us nothing.

These asymmetries are not just oddities within the discipline.  Rather, they highlight a fundamental truth about the law of evidence: much of it rests upon expectations about what people know, how they think, and how they behave.  And there's the rub, because those expectations can be over-valued, can become outmoded, or can be shown to have rested on faulty premises all along.

Will Kilpatrick raise any of these points at trial?  I'm not sure.  I don't know what grade he received in his Evidence class.