Federal Evidence Review

In prosecution for knowingly violating standards for handling asbestos-containing materials, evidence from ceiling material samples was relevant and admissible even though the samples had been collected over a year after the defendant's indictment and were taken from structures on which the defendant did not work; undisputed evidence that all building ceilings at the work site were made of the same materials allowed a reasonable inference that the buildings the defendant had worked on also contained the same level of asbestos, in United States v. Starnes, 583 F.3d 196 (3d Cir. Sept. 24, 2009) (Nos. 07-3341, 08-1691)

In its landmark case on admission of expert evidence under FRE 702, the Supreme Court also noted that the test for relevance under FRE 401 “is a liberal one.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993). FRE 401 requires the proffering party show the evidence to be admitted has a “tendency to make existence of consequential fact more or less probable.” The circuits have noted the liberal nature of this standard, including:

• First Circuit: “Each specific item of evidence offered need not ‘be sufficient to prove the case standing by itself’ before it is admissible. Rather, it is enough that the piece of evidence has some bearing on a matter of consequence to the case. Juries are asked every day to consider circumstantial evidence as they determine whether a defendant has committed a crime.” United States v. Burnett, 579 F.3d 129 (1st Cir. 2009)
• Sixth Circuit: FRE 401 erects a low barrier and for purposes of admission and there is no such thing as evidence that is “highly relevant” or “marginally relevant.” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 905 (6th Cir. 2006) (“As the Supreme Court and this Court have noted on numerous occasions, this standard of relevancy is liberal.”)
• Tenth Circuit: “Relevancy” is a broad concept. A fact is “relevant” if it merely provides a single “brick” in the evidentiary “wall.” United States v. Yazzie, 188 F.3d 1178, 1189 (10th Cir. 1999)
• D.C. Circuit: Evidence “is either relevant or it is not.” United States v. Foster, 986 F.2d 541, 645 (D.C. Cir. 1993) (relevancy describes any tendency to make existence of consequential fact more or less probable; there is no such thing as “highly relevant” or “marginally relevant,” for evidence “is either relevant or it is not”)

In a recent case, the Third Circuit contributed to these discussions on the test for relevant evidence.

In the case, defendant Starnes “had extensive experience in many aspects of asbestos abatement” and worked for subcontractor George on a public housing demolition project paid for by the U.S. Department of Housing and Urban Development. The defendant hired a work crew for the project, promising each member a $2000 bonus if the project was completed on time. Although work was planned to begin on January 2, 2001, actual work on the project began about a week later than scheduled. Accordingly, the defendant instructed his work crew to dislodge asbestos-containing materials using a “time-efficient” method, but one that risked and ultimately resulted in the spread of asbestos waste throughout the work site, including “the facades of the buildings and the surrounding sidewalks and grass.” Air-quality and employee safety regulators discovered the contamination in visiting the site several weeks later and when the defendant failed to remedy the situation, the regulators “issued a stop-work order, shutting down the project” on February 9, 2001. After subsequent investigation, the federal grand jury in 2003 indicted the defendant on violating work-practice standards and filing false reports on the air quality situation at the work site. Starnes, 583 F.3d at 203.

At trial, a regional technical coordinator with the EPA [Dugan] testified about samples he took:

“of suspected asbestos-containing material from ceilings in Building 31, a structure at the [work] site which had yet to be demolished. The evidence showed that the samples collected by Dugan contained asbestos concentrations ranging from 4.1 to 6 percent. Both defendants' attorneys objected to Dugan's testimony on relevance grounds, arguing that it should be stricken because Dugan took the samples approximately a year after the conduct charged in the indictment, from a building in which [defendant’s crew] did not work.”

Starnes, 583 F.3d at 204. The jury convicted the defendant and he appealed, challenging the evidence about the samples.

In reviewing the admission of the Dugan evidence for abuse of discretion, the circuit affirmed the defendant’s conviction. There was no dispute that the samples the defendant contested had been taken a year after the alleged offense and from different buildings than the defendant’s crew worked on. However, the standard for relevance under FRE 401 and 402 was so low that the court did not abuse its discretion by not excluding it. Under FRE 401, evidence had to have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Starnes, 583 F.3d at 214 (citing Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir. 2004) (“[E]vidence is irrelevant only when its has no tendency to prove a consequential fact.”) (internal quotation marks omitted)).

The prosecution was able to show that FRE 401, which “does not raise a high standard,” had been satisfied. As the circuit noted:

The government supported the introduction of Dugan's testimony by demonstrating that the ceilings in all of the [work site] buildings were made of the same materials and that no structural changes or significant renovations were made to them…. Given this predicate showing, there is no question that the testimony could give rise to a reasonable inference that the buildings worked on by [defendant’s crew] contained dangerous levels of friable asbestos in January 2001.

Starnes, 583 F.3d at 214 (emphasis added) (citing Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 525 (explaining that a trial court's determination whether “evidence is too remote to be relevant ... must be based on the potential the evidence has for giving rise to reasonable inferences of fact which are ‘of consequence to the determination of the action’”) (emphasis added) (quoting FRE 401)).

Although the Dugan testimony met the Third Circuit’s “reasonable inference” standard of relevance under FRE 401, the circuit noted that qualifications that might be raised about the factual basis of the expert’s testing went to the weight of the expert evidence, not its admissibility:

“[E]ven if the materials used” on the buildings the defendant’s crew worked on “did not perfectly correspond with the materials used” in the EPA witness’ tests a year later, “any dissimilarities would ‘affect the weight of the evidence ... not its admissibility.’”

Starnes, 583 F.3d at 214 (citing Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002) (admission of manufacturer's videotaped tests was not abuse of discretion); Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 525 (“The passage of time and purportedly changed circumstances were proper issues for counsel to argue to the jury, and for the jury to consider in weighing the evidence.”); Arcade Co. v. Boxwell, 41 App. D.C. 213, 223-24 (D.C.Cir.1913) (concluding that testimony offered to prove “conditions of moisture, darkness, and excessive cold” in a cold storage room on June 1, 1911, although based on an inspection that occurred more than a year later, was admissible)).

Finally, the Third Circuit rejected the defense claim that the evidence was unfairly prejudicial under FRE 403:

“While Dugan’s testimony may have hurt Starnes’s case, Starnes has not demonstrated that it carried a risk of unfair prejudice, much less that the District Court abused its broad discretion in determining that any such risk did not substantially outweigh the testimony’s probative value.”

Starnes, 583 F.3d at 215.

The Starnes case demonstrates the liberal application of the relevancy standard under FRE 401. As long as a reasonable inference may apply, the jury may assess any weight given to the evidence.