Intro to the Federal Rules of Evidence - 5

C. DISCRETIONARY EXCLUSION (FRE 403)
Probative Value v. Danger & Considerations

1. Probative Value : logical force & context in which it is offered.

2. FRE 403 “Danger”
The following factors are intended to protect the integrity of the fact-finding process.

a. Unfair prejudice
It means an undue tendency to suggest decision on an improper basis, commonly, a purely emotional basis (ACN). For example, gruesome photos of human injuries or of a corpse, evidence of other crimes.

When a court a weighing an item’s probative value against its prejudicial effect, the court should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect, and much less prejudicial value, the court should normally insist that the less-prejudicial item be used.

Example:
D is charged with the crime of possession of a firearm while having a prior felony conviction, and also with the crime of assault with a deadly weapon. D offers to stipulate that he has a prior felony conviction. The trial judge instead allows the prosecution to read the prior judgment to the jury. Consequently, the jury learns that the prior conviction was for aggravated assault and that D was sentenced to five years imprisonment on it. Held, the trial judge should have compared the probative value and prejudicial effect of reading the actual judgment to the jury, with the probative value and prejudicial effect of accepting D’s stipulation. After such a comparison, the judge should have used the stipulation instead of the judgment. Old Chielf v. U.S., 519 U.S. 172 (1997).

b. Confusion of issues
For example, evidence that the accused has committed past crimes may not only be prejudicial, but it may also distract the jury from the fact that there is only weak evidence that the accused was the person who did the act charged.

c. Misleading the jury

3. FRE 403 “Considerations”
The factors are intended to conserve judicial resources.
a. Undue delay
b. Waste of time
This is especially likely to be the case where the evidence is cumulative. For example, in a case in which the accused is charged with having poisoned the decedent, presentation by either side of more than two or three witnesses all testifying as to the cause of death might be deemed to be needlessly cumulative and therefore excluded.
c. Needless presentation of cumulative evidence

4. Judge’s Discretion
a. Admissibility
Though its probative value is substantially outweighed, it may be admitted.
Courts of appeals employ an abuse of discretion rule in reviewing a trial court’s FRE 403 decisions.
b. the Old Chief rule
The judge should consider (1) the effect of cautionary jury instructions, (2) the availability of alternative proof, and (3) the possibility of stipulations to reduce unfair prejudice in making the balance determination.
See Old Chief v. United States, 519 U.S. 172 (1997).