Distinguishing Relevance And Materiality

In the perjury and obstruction of an official proceeding trial of a former city police commander based on false interrogatory responses in an earlier civil action by alleged torture victims against the city, admitting the defendant's false interrogatory responses (denying knowledge and participation in the alleged torture) made during the prior civil action because it was both relevant as well as material to the perjury charges, in United States v. Burge, _ F.3d _ (7th Cir. April 1, 2013) (No. 11–1277)

FRE 401(a) requires that evidence be relevant which means that the evidence "has any tendency to make a fact more or less probable than it would be without the evidence." However, this alone does not make the evidence admissible. The fact must also be "of consequence in determining the action," under FRE 401(b). At the beginning of the month, the Seventh Circuit reviewed a case that posed a question of relevance and that lends itself to assessing the dual nature of the relevance inquiry.

In the case, former Police Commander Burge was accused of having tortured detainees over the years before he was discharged from the Chicago Police Department in the 1990s. During his tenure, "suspects were suffocated with plastic bags, electrocuted until they lost consciousness, held down against radiators, and had loaded guns pointed at their heads during rounds of Russian roulette." Although the statute of limitations had run for many of the alleged acts of torture, prosecutors charged him with perjury and obstruction of justice based on evidence he gave in civil suits that had been filed by victim Hobley against the city. In responding to interrogatories in that civil litigation, the defendant made false responses. He was tried and convicted on the perjury and obstruction of an official proceeding charges, the circuit noting that:

the issues in this appeal do not turn on the specific details of suffering caused under Burge's watch" but that "the witnesses at trial detailed a record of decades of abuse that is unquestionably horrific. The witnesses described how they were suffocated with plastic bags, electrocuted with homemade devices attached to their genitals, beaten, and had guns forced into their mouths during questioning. Burge denied all allegations of abuse, but other witnesses stated that he bragged in the 1980s about how suspects were beaten in order to extract confessions.
Burge, __ F.3d at __.

After being convicted of perjury and obstruction of an official proceeding charges, the defendant questioned whether the jury had found "his false interrogatory responses were material—that is, that they had the 'natural tendency' to influence the outcome" of several civil cases in which he provided the lies as interrogatory evidence. The defendant contended that, even if false, the prosecution failed to show that the "misrepresentations were used or relied upon" by the jury in the cases in which he provided perjured evidence; that is, the government had failed to show that his misstatements were material to the charged crime. Burge, __ F.3d at __.

In assessing this issue, the Seventh Circuit adverted to the distinction between evidence that is relevant and evidence that is material. The circuit noted that evidence may be relevant but not material. Relevant evidence may not automatically be material to a prosecution, although the reverse does not seem to be true. As described by the circuit, the defendant's lies in the interrogatories were both relevant, but also material in a special way required by statute:

The question of whether the Chicago Police Department had a policy or practice of torturing suspects was a core component of Hobley's civil suit. In covering up Burge's record of torture, the false interrogatory responses withheld key evidence relevant to the civil suit. Therefore, materiality does not turn on whether Burge's answers were “used” in the Hobley trial. His false statements could not be introduced precisely because he had concealed relevant evidence. And while Burge is correct that Hobley had to prove constitutional injury to prevail in his suit, that issue is irrelevant to the materiality of Burge's lies. Whether the City of Chicago could be held liable for a policy or practice of torture is plainly distinct from whether evidence in the form of an interrogatory answer is material to determining whether the contested policy or practice exists. So the question before the jury was whether Burge's false statement had “the natural tendency to impede, influence or dissuade” the outcome of Hobley's civil suit—not whether the suit's outcome actually turned on the Burge's lies. Hobley alleged a policy or practice of torture. Burge's false responses regarding these very accusations are plainly material.
Burge, __ F.3d at __ (citing United States v. Howard, 560 F.2d 281, 284 (7th Cir. 1977) (defining materiality for purposes of 18 U.S.C. § 1621))

In addressing the defendant's arguments about materiality, the circuit highlighted the importance of identifying the purpose for which the evidence is to be used - which requires the analyst to assess what the evidence supposedly can prove as well as what is needed to be proved in order to prevail at trial. Applying the relevance requirement does not necessarily mean the evidence is sufficient for conviction. For instance, FRE 401 specifies a weight component -- that evidence is relevant when it "has any tendency to make a fact more or less probable than it would be without the evidence." However, this tendency is not enough to make evidence relevant for introduction at trial as FRE 401(b) specifies a second requirement for relevance: that the fact that has the cognizable "tendency" satisfying FRE 401(a) also be a fact "of consequence in determining the action" under FRE 401(b).

As indicated by the court in Bruge, the evidence may be material for purposes of admission, but this quality would be insufficient to satisfy requirements of the statute about the nature of the offense. FRE 404(b) embodies a similar concept. For example, under FRE 404(a)(1) evidence of "a person’s character or character trait" is deemed to have no relevance to whether that person "acted in accordance with the character" on a certain occasion. However, evidence of this sort may be admitted under FRE 404(b) if it is offered for a limited purpose, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." FRE 404(b). In this situation the evidence is relevant because, it tends to make the fact more or less likely and is of consequence in the action, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." FRE 404(b)

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