Relevancy

Before delving into other evidentiary issues, preliminary consideration must be given to the concept of "relevancy." In stalking and harassment cases, like other cases, any item of evidence sought to be introduced must be relevant.

"'Relevant evidence' means evidence having any 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 the evidence." Rule 11-401. Therefore, the judge, as "gatekeeper" of exclusion or admission of evidence, must always first consider whether the evidence is relevant. This relevancy determination applies to testimonial as well as physical or documentary evidence.

Generally, evidence which is not relevant to a case is not admissible. For example, in a harassment prosecution alleging dozens of late night hang-up phone calls, the prosecution's proposed evidence of detailed records of the defendant's internet usage and specific websites visited would typically not be relevant to the case given the absence of harassment allegations other than by telephone. Records of the defendant's phone usage are more likely to be relevant.

Just because evidence is relevant does not mean that it is automatically admissible. Rather, there may be other concerns or rules of evidence which render relevant evidence inadmissible. For example, a judge might reasonably conclude that, although relevant, the prosecution's request to have three additional witnesses testify to virtually the same matters as the alleged victim and two previous witnesses is inappropriate as the additional testimony would be cumulative.

Additional examples of relevant evidence which nonetheless might be inadmissible include:

• Hearsay statements which do not fall within any recognized exception to the general prohibition against hearsay.
• Evidence which is more prejudicial to a party against whom it is offered than it is probative. For example, in a felony aggravated stalking case where the victim is a 15 year old neighbor of the defendant, evidence that the adult defendant is a high school teacher and coaches girl's basketball is more prejudicial (i.e., the jury might view the defendant as a predatory pedophile and the neighbor as one of his targets) than probative, given that the victim is a neighbor, not a student or team member of the defendant.