A fundamental limitation on questioning a witness is that the information sought must be relevant.18 Evidence is deemed relevant if it has 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 such evidence.19 That determination encompasses two elements: (i) materiality, which looks to the relation between the proposition for which the evidence is being offered and the ultimate issues or ultimate facts in the case, and (ii) probative value, which is the tendency of the evidence to establish the proposition for which the evidence is being offered.20
Evidence is relevant if it provides a link in the chain leading to the establishment of guilt or liability or of the absence of guilt or liability or where it tends to establish the state of mind of the actor (where such state of mind is an element of the crime or cause of action or any defense).21 The party offering the evidence has the burden of establishing relevance beyond mere possibility.22 In determining whether testimony is relevant, it must be determined whether the proffered testimony relates to or bears upon facts that are of consequence to the crime charged or claim asserted or to any defense and advances the likelihood of the fact asserted.23 The testimony need not concern a disputed fact to be relevant.24 The decision whether to admit testimony as relevant is within the sound discretion of the trial court.25 The trial judge is permitted the maximum flexibility in drawing upon his or her own experiences to evaluate the probabilities on which relevancy turns.26
Even if relevant, testimony may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.27 “Unfair prejudice” means an undue tendency to suggest that a decision be made on an improper basis, such as an emotional one, one characterized to shift the jury’s focus away from the incident in issue or to create a risk of a mini-trial, thereby unnecessarily wasting time.28 For example, evidence of intoxication of a witness at the event or occurrence about which the witness testifies is relevant to the issue of the credibility of the witness or the ability of the witness to observe and recall the event. Further, evidence of alcohol usage of a party may be relevant to the issue of the party’s mental condition where the party claims damages including mental health problems such as depression and anxiety. But where the primary purpose of the evidence is to humiliate the witness on a collateral point at time-consuming expense to the prejudice of a fair hearing on the real issues of the case, a court may prohibit the admission of such evidence.28.1
As with the determination of relevance, the determination of whether the probative value of testimony is outweighed by its prejudicial effect is within the discretion of the trial court.29
18. D.R.E. 402.
19. D.R.E. 401. See also Norwood v. State, 95 A.3d 588, 598 (Del. 2014); Garboctowski v. State, 123 A. 395, 400 (Del. 1923) (any fact which sustains or impeaches a pertinent hypothesis is relevant).
20. Stickel v. State, 975 A.2d 780, 783 (Del. 2009); Lilly v. State, 649 A.2d 1055, 1060 (Del. 1994); Getz v. State, 538 A.2d 726, 731 (Del. 1988); State v. Callaway, Cr. A. Nos. 586-12-0070-0071, slip op. at 15, Chandler, J. (Del. Super. July 29, 1988), aff’d mem., 565 A.2d 279 (Del. 1989).
21. See Dutton v. State, 452 A.2d 127, 138 (Del. 1982).
22. Emmell v. State, No. 182, 1989, slip op. at 2, Moore, J. (Del. Apr. 2, 1990) (ORDER), disposition reported at 577 A.2d 752 (Del. 1990) (TABLE).
23. Green v. St. Francis Hospital, Inc., 791 A.2d 731, 739 (Del. 2002); Kiser v. State, 769 A.2d 736, 740 (Del. 2001); Getz v. State, 538 A.2d 726 (Del. 1988); State v. Cooke, 914 A.2d 1078, 1091 (Del. Super. 2007); State v. Kane, Cr. A. No. 85-12-0226A, slip op. at 7, Chandler, J. (Del. Super. Aug. 20, 1986).
24. Rush v. State, 491 A.2d 439, 445 (Del. 1985).
25. Hignutt v. State, 958 A.2d 863, 867 (Del. 2008); Wilhelm v. Ryan, 903 A.2d 745, 752 (Del. 2006); Moorhead v. State, 638 A.2d 52 (Del. 1994); Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc., 596 A.2d 1358, 1366 (Del. 1991); Baynard v. State, 518 A.2d 682, 692 (Del. 1986); Lampkins v. State, 465 A.2d 785, 790 (Del. 1983); Thompson v. State, 399 A.2d 194, 198-99 (Del. 1979).
26. State v. Kane, Cr. A. No. 85-12-0226A, slip op. at 4, Chandler, J. (Del. Super. Aug. 20, 1986).
27. D.R.E. 403.
28. Gallaway v. State, 65 A.3d 564, 570 (Del. 2013); Moorhead v. State, 638 A.2d 52 (Del. 1994); State v. Long, Cr. A. No. K9l-12-0047, slip op. at 12, Steele, J. (Del. Super. July 23, 1992), aff’d mem., 628 A.2d 84 (Del. 1993).
28.1. Filliaggi v. Garrett, C.A. No. 91C-03-232, slip op. at 3-4, Quillen, J. (Del. Super. Aug. 11, 1995); Rothermel v. Consolidated Rail Corp., C.A. No. 94C-10-021, slip op. at 11, Graves, J. (Del. Super. Jan. 21, 1998).
29. Hignutt v. State, 958 A.2d 863, 867 (Del. 2008); Bentley v. State, 930 A.2d 866, 876 (Del. 2007); Charbonneau v. State, 904 A.2d 295, 304 (Del. 2006); Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things to Wear, Inc., 596 A.2d 1358, 1366 (Del. 1991); Rush v. State, 491 A.2d 439, 445-46 (Del. 1985); Ciccaglione v. State, 474 A.2d 126, 130 (Del. 1984).
© 2014 David L. Finger