Another advanced-tactics argument type is to assert that your opponent’s argument “goes to weight, not admissibility.” What you’re asserting by using that phrase is that your opponent is arguing something that might in fact lower the importance (the “weight”) a piece of evidence has in the minds of the jury, but does not in fact affect the admissibility of the piece of evidence. To put it another way, you’re asserting that the question you and your opposing counsel are arguing over is one that should be resolved by the jury, not the judge. This issue comes up most often in relevance contexts. Most of the time when you respond to a relevance objection, you’re arguing that the information you’re trying to enter is part of a chain of reasoning that “makes the existence or nonexistence of a fact necessary for the resolution of the action more or less probable [College Rules, 2012].” What your opponent might do to respond is argue that your chain of reasoning is bad: the premise you’re trying to prove doesn’t lead to the conclusion you’re trying to prove. That’s often a situation in which the weight versus admissibility argument is useful. For virtually every line of logic connecting evidence one side in a case has, the other side will have something to tear it apart. That doesn’t mean those arguments shouldn’t be presented to the jury- in fact, that’s the entire point of trials! Your opponent is entitled to try to tear your case apart, but you’re entitled to present your case- and you’re entitled to present it to the jury, not the judge. There are limits to that entitlement, and the relevance rule is designed to be sure that those limits are adhered to, but the relevance standard is what we call a ‘low bar’, which basically means you don’t have to do much to ‘leap over’ the barrier it puts in your way. (Proving someone guilty in a criminal case, which you have to do “beyond a reasonable doubt”, is a prime example of a ‘high bar’). As long as you can show that your evidence “tends” to “make the existence or nonexistence of a fact necessary for the resolution of the action more or less probable [College Rules, 2012],” any argument your opponent uses which implicitly assumes a higher standard goes to weight, not admissibility.
So what does that exchange look like? Let’s say you’re the prosecutor in a drunk driving case. You’re trying to enter the testimony of a witness who saw the defendant have a few drinks a couple of hours before he was in a crash and got caught by the cops. Opposing Counsel objects:
Opposing Counsel: “Objection, Your Honor, Relevance.”
Judge: “Response?”
You: “Your Honor, we have a burden to prove that the defendant was intoxicated at a particular time on the day of the crash. Eyewitness testimony describing him consuming alcoholic beverages that day clearly tends to support that point.”
Opposing Counsel: “Your Honor, may I respond?” [Judge nods] “The State has a burden to prove the defendant [Author’s note: the defense counsel should never call their own client “the defendant”. But it’s preferable to trying to think up a name for the character] was intoxicated at a particular time on the day in question. But they’re discussing events that occurred several hours beforehand, without demonstrating a connection between the two.”
You: “Your Honor, may I respond?” [Judge nods] “Provided all parties here concede, as I think we do, that consuming alcoholic drinks at one time tends to cause intoxication later, Counsel’s objection goes to weight not admissibility. Relevance is a low bar; these facts need only tend to show he was intoxicated at the time he drove. Opposing counsel is certainly free to argue that we haven’t met our burden to prove intoxication, but he should be making that argument to the jury.”
In Part II, we’ll go over how to respond to this type of argument when it’s made against you.
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