Evidence 2020 FRE 403 Lecture Notes PDF

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FRE 403 Lecture Notes...

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Evidence 2020 Touro Class 2 (R 8/31) – Relevance and Probative v. Undue Prejudice Balancing continued… 1) FRE § 403 ! exclusionary rule for relevant evidence [Even if you have relevant evidence, how do you keep it out?] ! often offered as objection along with lack of relevance* a) The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. i) Up to the court’s discretion to exclude the evidence – it does not have to (1) Hard to get a 403 ruling reversed on appeal because its discretionary ii) Dealing with relevant evidence: ONLY comes into play because the evidence has already been deemed to be admissible/relevance b) Can keep out relevant evidence if: i) Unfair prejudice** (1) Lots of pieces of evidence are prejudicial/hurtful – but this must unfairly hurt the other side (a) Ex. Photos that inflame the passions of the jury – causing them to decide based on emotions ii) Confuses the issue (1) Bringing up relevant things that are diverting attention of the true issue iii) Misleading the jury iv) Undue delay (1) All evidence naturally results in delay, but this must be undue (2) Trial within a trial – diverting the jury from the main issue v) Wasting time vi) Needlessly presenting cumulative evidence (1) Duplicative; already been proven (i.e., if there are 10 witnesses to a crime, it would be cumulative to have all 10 testify) (2) Wasting judicial resources c) If outweighed by one or more of the factors, the evidence stays out & is not considered d) Advisory Committee Note ! when doing the balance, the availability of other evidence is VERY important – if the evidence can be proved otherwise, you might not need it ***When arguing 403 analyses, argue BOTH sides of the balancing test (Ex. Why it has high probative value AND why it has low undue prejudice) Probative evidence – is it SUBSTANTIALLY outweighed by one of the 403 factors?

Gory Photos and Other Inflammatory Evidence 1) State v. Bocharski a) FACTS: i) D accused of killing Brown. Brown found with stab wounds to the head. No weapon found. Dispute over gory photos of Brown’s body ii) Evidence at issue: six gory photos of the victim b) HOLDING: i) Were the exhibits relevant? (1) Yes, they help to show that the victim was murdered and stabbed (element of this crime) ii) FRE 403 analysis (1) Photos 42-45 were admissible because they were relevant. They showed the wounds to the victim, proving she was killed and stabbed. This would go towards establishing the D was guilty. (a) They have probative value (b) Evidence of decaying body (i) Shows timeline – D’s knife wasn’t seen for three months (c) Evidence of location (i) Prosecution for felony murder – shows that a burglary happened and there were defensive wounds (d) Possible unfair prejudice? (i) No, allowed in ! not so bad when it comes to gory photos – this is a homicide case (ii) How could the judge limit the effect of the pictures? 1. Limit the time that the jury looks at the pictures 2. Could be black and white only (2) Photos 46-47 were relevant but were SUBSTANTIALLY OUTWEIGHED by other factors (a) Unfair prejudice (b) Really just upset/inflame the jury – concerned about the jury being unable to look at legal arguments

(c) Autopsy photos will really disturb the jury iii) With gory photos there is always the chance it will upset the jury. The prosecution however has to show the death of the victim. iv) Concurring Opinion = There must be an abuse of the court’s discretion when overturning evidence decisions (not just that the judge made the wrong decision, but any judge would have known better than to do that) (1) Leave it up to the jury and let the jury figure it out (2) Very trusting of juries – let them sort it out and determine what is relevant and what is not Must consider the evidence in light of the other available evidence 2) Law and order clip a) Murder case where father is accused of infanticide b) Motion in limine – pretrial motion (getting an evidentiary ruling from the judge before the trial begins) i) Defense motions (1) Bar from using the term “victim” for the baby (a) Rejected hard (2) Bar photograph of baby (a) Judge excluded pic based on: (i) Picture unnecessary 1. The detective can just testify and say what he saw at the crime scene 2. Extremely emotional to see a dead baby 2) Problem 1.8: machine gun a) FACTS: i) D charged with possessing a machine gun. P’s expert got gun to fire like machine gun. D’s expert didn’t. D saying P fired like it did b/c the gun was dirty and malfunctioned. P wanted photo to show gun was actually clean. Photo didn’t show inside of gun and also showed a lot of other guns and weapons that weren’t D’s. b) THOUGHTS: i) Definition of undue prejudice (1) Picture would leave the jury with the wrong impression because the picture didn’t even show the inside of the gun and there were a bunch of other guns in the background that weren’t even D’s (2) Prejudicial b/c it makes D look like a bad guy that he hangs out in a house with a ton of guns ii) If it was admissible, ways to make it less prejudicial? (1) Maybe crop out the other weapons from the photo and admitted the cropped version (a) Admit evidence subject to redaction...