703.1Relevance & Admissibility [Rules 401, 402]

Last Updated: 03/21/21

Key Concepts

  • Evidence is relevant if it has any tendency, however slight, to show that a fact of consequence in the case is more or less likely.
  • All relevant evidence is admissible unless it is specifically excluded by the state or federal constitution, another statute, or the rules of evidence.

The Basic Rules

Rule 401 – Definition of Relevant Evidence

"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.

G.S. 8C-401.

Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Generally Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible.

G.S. 8C-402.

Legal Overview

Relevant Evidence

Evidence is relevant if it has any tendency to make more or less probable any fact that has a bearing on the determination of an issue of consequence in the case. See G.S. 8C-401. To be relevant, the probative value of the evidence “need only be slight.” State v. Miller, 197 N.C. App. 78 (2009). The strength of the evidence goes to its weight and sufficiency – not to its relevancy or admissibility. See State v. Smith, 357 N.C. 604 (2003) (evidence is relevant if it throws “any light” on the issue); State v. Sloan, 316 N.C. 714 (1986) (“Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case.”); State v. Lytch, 142 N.C. App. 576 (2001) (“in criminal cases, every circumstance that is calculated to throw any light upon supposed crime is admissible” and “the weight of such evidence is for the jury”); quoting State v. Hamilton, 264 N.C. 277 (1965).

To be relevant, evidence also must relate to a “fact that is of consequence to the determination of the action.” G.S. 8C-401. This requirement is likewise interpreted broadly. See, e.g., State v. Bishop, 241 N.C. App. 545 (2015), rev’d on other grounds, 368 N.C. 869 (2016) (evidence was not part of crime charged, but was still relevant to show context, motive, and set-up of crime); State v. McDougald, 336 N.C. 451 (1994) (evidence of threats made by defendant during his escape was relevant to show entire context of the escape and strength of his desire to flee).


Rule 402 is a “rule of inclusion,” meaning that all relevant evidence is admissible unless it is specifically excluded by the United States or North Carolina Constitutions, another law or statute, or the rules of evidence themselves (e.g., unfair prejudice under Rule 403). See G.S. 8C-402; State v. King, 343 N.C. 29 (1996) (all relevant evidence is admissible, unless excluded by other grounds).

Conversely, if evidence is not relevant, it is not admissible. See, e.g., State v. Roache, 358 N.C. 243 (2004) (evidence that was only “tenuously related” was irrelevant); State v. Baker, 320 N.C. 104 (1987) (evidence was “too speculative” to be relevant); State v. Bodden, 190 N.C. App. 505 (2008) (9 millimeter bullet found near murder scene was irrelevant in case where bullets used to shoot defendant were .38 or .357 caliber); State v. Hart, 105 N.C. App. 542 (1992) (evidence having no tendency to prove a fact in issue is not relevant, and is properly excluded).

Practice Pointer

Preliminary questions of fact
The court is not bound by the rules of evidence for purposes of deciding whether proffered evidence is relevant and admissible. See G.S. 8C-104, 8C-1101(b). For example, in deciding whether a witness’s proposed testimony is relevant and admissible for purposes of establishing the defendant’s motive, the judge may consider hearsay and other prejudicial information that would not ordinarily be admissible at trial.
For more information, see the related entries on Evidence: Preliminary Questions of Admissibility [Rule 104] and Rules Inapplicable to Certain Proceedings [Rule 1101(b)].

Court's Discretion

Admission of relevant evidence under Rule 402 is not considered a discretionary decision, because the evidence either should or should not be admitted pursuant to the rule. See, e.g., State v. Moctezuma, 141 N.C. App. 90 (2000) (reversing for error where court allowed introduction of irrelevant evidence of seized drugs that were not attributable to defendant: “A trial court's ruling on relevant evidence is not discretionary and therefore is not reviewed under the abuse of discretion standard”).

In practice, however, the trial judge’s ruling under Rule 402 is usually shown some level of deference on appeal. See, e.g., State v. Cowan, 194 N.C. App. 330 (2008) (acknowledging that relevancy determinations “technically are not discretionary,” but they are still shown a limited degree of deference on appellate review because “the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable”).

By contrast, the trial court does exercise its discretion (and thus receives a highly deferential standard of review on appeal) when deciding whether the probative value of relevant evidence under Rule 401 is outweighed by the dangers of unfair prejudice, confusion, waste of time, or other Rule 403 grounds. See, e.g., State v. Macon, 346 N.C. 109 (1997) (excluding relevant but prejudicial evidence is left to sound discretion of the court); State v. Jones, 358 N.C. 330 (2004) (trial court did not abuse discretion by finding that audiotape was relevant and not unfairly prejudicial).

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Relevancy,” N.C. Superior Court Judges’ Benchbook, March 2015.