[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

Fed.R.Evid. 104(b) embodies the concept of “conditional relevance.” It currently states: “Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.” [italics added].

Rule 104(b) is an old and familiar friend. The federal Advisory Committee Notes track it back to 1972, stating:

In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled “conditional relevancy.” Morgan, Basic Problems of Evidence 45-46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g., evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401. [emphasis added].

But, it appears that “conditional relevance” will soon be no more.

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published the “Preliminary Draft: Proposed Amendments to Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Federal Rules of Evidence” (August 2026). 

The Report of the Advisory Committee on Evidence Rules describes the concept of conditional relevance as “unhelpful” and “confusing.” The proposed new language is double underlined below. Removed language is stricken:

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. Unless these rules provide otherwise, the proponent must establish the existence of a preliminary fact by a preponderance of the evidence.

10 (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. To establish that evidence is relevant, the proponent must demonstrate to the court that the trier of fact could reasonably find that the requirements of Rule 401 have been met. In making its relevance determination, the court may consider the evidence itself, other evidence, and common knowledge and experience. The court may admit the proposed evidence on the condition that the further proof be introduced later.

The end of conditional relevance is clear. The Committee Note states:

[T]he [proposed] amendment to Rule 104(b) eliminates the concept of “conditional relevance.” There is no reason for special treatment of facts that are conditionally relevant, because in almost all cases, the relevance of a particular fact is dependent on a showing of other facts and so the relevance is “conditional.” Moreover, if the existence of one fact is conditionally relevant upon another, the result is that both facts are “conditionally relevant.” See Ronald Allen, The Myth of Conditional Relevance, 25 Loyola L. Rev. 871-884, 49 879 (1992) (“Evidence is relevant only because there is an intermediate premise or set of premises that connects the evidence to some proposition involved in the litigation. But if determining the relevance of evidence always requires relying on some intermediate premise, no distinction can be drawn between relevancy and conditional relevancy.”).

The Committee Notes state:

Providing a uniform approach to all questions of relevance avoids confusion, especially because most courts currently use the same permissive approach to all relevant evidence, conditional or not. All questions of relevance should be governed by the same “a reasonable person could find” standard because the jury is in as good a position to determine relevance as is the court.

Subject to public comment and further review, the Committee also proposes other changes to Rule 104. The proposal codifies the common-law requirement that preliminary questions of fact be determined by a preponderance of the evidence standard.

Further:

The [R]ule 104(b) test that “proof must be introduced sufficient to support a finding” has been revised, because a court’s preliminary determination of relevance is not limited to proof submitted to it. A court could find evidence relevant under Rule 104(b) by considering the evidence itself, as well as common knowledge and experience. For example, if the proffered evidence is that the defendant was carrying a gun, its relevance to a charge of armed robbery can be determined without any further proof. The standard has been changed to whether the factfinder “could reasonably find” the evidence to be relevant. That standard is the same as “sufficient to support a finding.”

The Advisory Committee suggests that different geographic areas may have different “common knowledge and experience,” writing:

In deciding whether evidence is relevant, the judge must not only take into account the evidence formally in the record, but also the likely background knowledge and experience of a reasonable juror from the area where trial is being held. For example, suppose a trial concerns the cause of a large explosion and fire. The plaintiff claims that the defendant mishandled nitrogen fertilizer containing ammonium nitrate. A witness is asked whether such a fertilizer was stored on the premises and an objection on relevance is made. If the trial is in a rural state with a large farming population, the trial judge would likely overrule the objection because a reasonable person from that population would likely know the dangerous properties of the material. If, by contrast, the trial were held in an urban area, the judge would likely conclude that evidence of the dangerous properties must be entered into the record to satisfy the requirement of relevance. [emphasid added].

The Committee states that the amended rule “retains the provision of allowing proof to be introduced later.”

Many other Rule changes are proposed in the lengthy report. One that will have wide-ranging impact is the proposal that blanket bans on use by unrepresented litigants of electronic filing systems are prohibited.

Maryland Rule 5-104(b) is similar to the current Fed.R.Evid. 104: “Relevance Conditioned on Fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.”

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