B. (§1.11) Extrinsic Factors Affecting Admissibility
All evidence that is (a) material and (b) relevant is admissible unless (1) privileged, (2) incompetent, or (3) otherwise barred for policy reasons by state or federal constitution, statute, court rule, or common law. Compare Federal Rule of Evidence 403, which, because of the coverage of those rules, omits reference to competency and the common law. Their coverage within the federal rules represents codification.
On the other hand, the federal rules are not conclusive in at least two respects. First, they defer to federal common law or state law with respect to a number of things such as privilege. FED. R. EVID. 501. Second, they do not attempt to spell out restrictions imposed by the federal constitution, statutes, and other court rules, such as those regulating civil and criminal procedure. In addition, based on Federal Rule of Evidence 1101, the rules do not apply, except for the rules of privilege, to certain proceedings.
Though the purpose of this chapter is not to provide a treatise on evidence, certain collateral matters that are of considerable importance insofar as they affect the making of proof generally must be discussed.
Looking first at the Federal Rules of Evidence, Federal Rule of Evidence 401 defines relevant evidence as evidence that “has any tendency to make a fact more or...
