Evidence: What will the court admit, and why (relevance vs. materiality)?

The decision of whether to admit or exclude evidence in a hearing or trial belongs to your commissioner or judge. Even on appeal, the evidentiary decisions of the commissioner or judge will only be overturned if “abuse of discretion” is found.  And even if abuse of discretion is found, it still will not result in reversal of the case, unless a significant right of one of the parties was affected through the incorrect inclusion or exclusion of evidence. Understanding what admissible evidence is will help you identify the kind of evidence you need to present at trial, as well as what evidence that should not be admitted at trial.

To be admissible, evidence must be both “material” and relevant. Evidence is material if it helps prove an element of a claim or defense that needs to be established in the case. So, the evidence must relate to proving or disproving the existence of essential elements of the case.

Evidence is relevant if it is two things: 1) material; and 2) tends to make a fact more or less probable (i.e. “provable”) than it would be without the evidence. Evidence is relevant if tends to establish the truth of falsity of an alleged fact. [i]

Here’s an example: imagine a divorce case in which one parent wants to present evidence that he/she attended every one of their child’s baseball games. The judge would have to determine: 1) is it evidence of a fact material to an issue that needs to be resolved in court, such as who should get custody of a child)?; and 2) does the evidence tend to establish the existence or nonexistence of that fact?  If the evidence that the parent attended every one of the child’s baseball games is being used to show that the parent is or is not in fact worthy of being awarded custody of a child, it is likely that the judge will admit the evidence as relevant.

Keep in mind that while judges must make a careful determination of both the relevance and the materiality of evidence, often they are required to make a quick decision in the wake of an objection at trial.  If there is a particularly important piece of evidence that you would like to ensure is included or excluded from evidence, a pre-trial “motion in limine” may be a good option.  This type of motion allows the judge to consider the evidence and to make a ruling on its admissibility before the trial itself begins.

Utah Family Law, LC | | 801-466-9277


[i] See Utah Rules of Evidence 401:

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a)   it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b)   the fact is of consequence in determining the action.

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. This rule is the federal rule, verbatim.


This rule is the federal rule, verbatim, and is comparable in substance to Rule 1(2), Utah Rules of Evidence (1971), but the former rule defined relevant evidence as that having a tendency to prove or disprove the existence of any “material fact.” Avoiding the use of the term “material fact” accords with the application given to former Rule 1(2) by the Utah Supreme Court. State v. Peterson, 560 P.2d 1387 (Utah 1977).

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