Similar Facts Evidence: Balancing Probative Value against the Probable Dangers of Admission
![handle is hein.journals/davlr9 and id is 441 raw text is: Similar Facts Evidence: Balancing
Probative Value Against The Probable
Dangers Of Admission
I. INTRODUCTION
Construction workers handling a steel reinforcing bar were injured
when the bar came into contact with a utility wire strung about ten
feet from the building where they were working. The workers sued
the utility company for negligence in installing the uninsulated wire
so near to the building. At trial the workers offered evidence of a
similar accident one year earlier at another building, and of a later
accident involving one of their co-workers. The workers' theory was
that the evidence would show the company's negligence in not insu-
lating or removing the wires once it knew of the danger.I
The evidence offered by the workers is commonly called similar
facts evidence. Generally, similar facts evidence is of an event offered
to prove a fact related to a second, similar event. This definition em-
braces a diverse class of circumstantial evidence. A uniform approach
to such evidence is possible because common questions of admissi-
bility arise, based on a shared evidentiary purpose.
The traditional approach to similar facts evidence, however, em-
phasized the diversity of such evidence. Courts developed a matrix of
special rules to apply to different kinds of similar facts evidence.2
Under this approach courts first identified which of a number of
existing categories the evidence fit. Then courts applied a test for
admissibility developed for that category. This resulted in an arcane,
murky body of law which brought predictibility at the expense of a
consistent, logical treatment of similar facts evidence.3
'This fact pattern is taken from McCormick v. Great Western Power Co., 214
Cal. 658, 8 P.2d 145 (1932). The court's treatment of the proffered evidence is
discussed infra. See note 3, infra, and text accompanying notes 85 and 89, infra.
2See, e.g., the analysis of similar facts evidence in B. WITKIN. CALIFORNIA EvI-
DENCE § § 350-63 (2d ed. 1966, Supp. 2d ed. 1974) [hereinafter cited as WIT-
KIN ] and Slough, Relevancy Unraveled (pts. 1-4), 5 KAN. L. REV. 1,404, 675
(1956), and 6 KAN. L. REV. 38 (1957).
'In McCormick v. Great Western Power Co., 214 Cal. 658, 665, 668, 8 P.2d 145,
148, 149 (1932), for example, the court admitted the prior accident evidence
but excluded the subsequent accident evidence without clearly explaining why
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Similar Facts Evidence: Balancing Probative Value against the Probable Dangers of Admission
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