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when they are corrected and admonished to avoid their error, told, for instance, to state what happened and not what they thought about it, they become so confused and halting that most of the effect of their testimony is lost. This misfortune could nearly always be avoided by a little knowledge of the rules of evidence, with a little previous thought and a little common sense.



§ 15. Distinction between relevance and competence. Evidence may be regarded from two standpoints, in reference to its admissibility: first, the standpoint of subject matter; and second, that of form. Unfortunately, there are no terms which describe, precisely, evidence which satisfies the scrutiny of the courts from these two points of view, but the words "relevance" and "competence" will serve the purpose roughly. Relevant evidence, as the term indicates, is evidence the subject matter of which relates to the issues. In a legal sense, relevance signifies something more, for not all matters which logically relate to the case in hand are admissible. They must relate sufficiently to warrant the court in taking time to investigate them, and they must not tend to distract it from the main issues. In other words "relevance" means "sufficient relevance," as will be more fully explained shortly. This is a flaw in our terminology, but "relevant" is the word used by the courts, and, with the qualification suggested, need not be misleading. "Competence" is a general term used by judges and lawyers in a variety of ways and often to include relevance, but it may properly be used also to indicate compliance with the rules of law as to the form of evidence irrespective of the subject matter, and it will

be taken in that sense in this article. Competent evidence will be regarded as evidence offered in a form which the courts will admit.

§ 16. Same: Illustration. The distinction will be clearer from illustration. Assume that the issue in a given case is whether A signed a contract offered in evidence. Testimony of B that A was a man of generous disposition is not relevant, because the subject matter of the testimony is foreign to the issue, whether or not A signed the contract, and throws no light on that question. On the other hand, testimony of C that D told him that he saw A sign the contract is relevant, because it bears directly on the issue, but it is incompetent because it is only hearsay evidence of the subject matter, and hearsay under the rules is inadmissible. This illustration may suggest another point in regard to the distinction between relevance and competence: namely, that relevance is a logical and flexible requirement, the application of which depends upon the facts of each individual case, whereas the requirement of competence, being based upon definite rules, has almost the rigidity of a statute, operating upon the form of the evidence without reference to the subject matter in particular cases. There are exceptions to this difference, as in the case of evidence of character of the parties to a suit, where it will be shown later that hard and fast rules on the subject of relevance have grown up, but, in general, the distinction obtains. We now pass to consider relevance more in detail, reserving the subject of competence for the following chapters.

§ 17. Degree of relevance requisite. It is easy to say that evidence must be relevant to the issues, but this does not advance us far, because we then have to determine how far relevant. Relevance is of varying degrees. A sues B, a street-car company, for ejection from one of its streetcars; C, the conductor, testifies that he put off A because he refused to pay his fare. That is clearly relevant to the issue whether or not the ejection was justified. Thereupon, the company attempts to show that A has previously been ejected from a railroad train for non-payment of fare. This evidence bears on the issue, because a man who tries to "beat his way" once is likely to do it again; the habit may be chronic. On the other hand, the earlier incident has only a problematical bearing on the later. A, ejected from a railroad car, is about as likely not to attempt the same fraud on a street-car as to attempt it, and, when it is possible to get the testimony of A himself, of C, the conductor, and of passengers and bystanders as to the ejection from the street-car in dispute, the connection of the prior incident would seem too slight and the possibilities of erroneous inference from it too great to admit it in evidence (1). This illustration will explain the previous statement that more than mere relevance is required of evidence. It is hard to conceive that evidence would ever be offered, which would not be relevant in the sense that it would bear in some way upon the issues. To be admissible it must bear fairly directly. There is no rule of thumb to determine how directly, and no precise test can be

(1) Sprenger v. Tacoma Traction Co., 15 Wash. CCO.
(2) Columbia R. R. Co. v. Hawthorne, 144 U. S. 202.

given, because as has been intimated, everything depends upon the facts of each individual case and what is reasonable under its special circumstances. Perhaps we can hardly come closer to a principle than to say that those matters are admissible, which are not trivial and which our judgment tells us are more likely to help toward the correct decision of issues of fact than to mislead. Matters which have only a slight or conjectural bearing on the issues are inadmissible, especially if they are calculated to prejudice the jury against one party or the other.

§ 18. Same: Further illustrations. Thus, it has been held, in a case in which an employee of a saw-mill sued the owner for negligence in providing a defective machine, as a result of which the employee was injured, that it could not be shown that subsequently the machine was repaired (2). Such repairs might seem to imply a recognition of previous neglect; but, on the other hand, as was said by the supreme court of Minnesota: "A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards" (3). Therefore, the evidence would be more likely to create an unthinking prejudice against the defendant, than to enlighten the jury as to whether or not it was exercising due care. Likewise, in a similar suit against a corporation for damages due to alleged negligence, it cannot be shown that the defendant carried accident or liability insurance (4), because it is

(3) Morse v. Minneapolis & St. Louis Railway, 30 Minn. 465.
(4) Sawyer v. Arnold Shoe Co., 90 Me, 369.

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