Objections to the admissibility of evidence on relevancy grounds are usually based on Rule 403, not Rule 402. It is very difficult to establish that an item of evidence has absolutely zero probative value. It is easier to concede that it has some minimal tendency to prove an issue (and thus satisfies the definition of relevancy in Rule 401) but argue that the probative value is so low that the evidence should be excluded as unnecessarily prejudicial, a waste of time, or confusing to the jury.
Let's look at some Rule 403 balancing examples, starting with the recurring problem of evidence involving crime, sex, drugs, religion, politics and violence.
The first danger mentioned in Rule 403, and the one that forms the vast majority of the situations in which the rule is invoked, is the danger of "unfair prejudice." The strapless dress example on page 67-68, while quaint, is prototypical. If there were something titillating or scandalous about either Susan or John's appearance, the photo would inject something extraneous and distracting into the trial. That is what we mean by unfair prejudice -- an aspect of the photo that causes prejudice which is extraneous to the trial. Personally, I don't think a strapless dress is anything to worry about, but remember that the judge and jurors may be from older generations who are more easily shocked.
In the example, Susan says John raped her. John has a photo showing them together one year before the alleged rape.
First question: Is the photo relevant at all? Of course. The background and relationships among parties to a lawsuit are always relevant.
Second question: How relevant is it? -- what is its probative value on a scale from 1 to 10?
Pretty low.
It tells us they knew each other, but not how well or what kind of relationship they had, and it's a year old I'd give it a 1.
Note at the end of the example in the book, the authors add that on her direct examination, Susan claims she does not know John. Does this increase the probative value? I don't see that whether they
know each other or not makes much of a difference, but if Susan is lying about it, it affects her credibility, so it has some remote relevance to two issues, not just one, so I'd give it a 2.
Third question: Does it have any prejudicial effect at all? If it involves crime, sex, drugs, fast food, religion, politics, violence, gay marriage, global warming, gas prices, Sarah Palin, illegal immigrants, abortion or any other topic people get emotional about, argue about, or hear about at church, then it has SOME prejudicial effect.
Fourth question: If there is prejudicial effect, how prejudicial is it on a scale of 1 to 10?
Let's look at some examples. For each one, assign a prejudice level of 1-10.
a) Photo 1: John and Susan together at a dance, Susan in a strapless dress.
b) photo 2: John and Susan drunk at a bar
c) Photo 3 : John and Susan at the beach with whipped cream.
d) Photo 4 : John and Susan at a party snorting coke
e) Photo 5 : John and Susan at a political rally
Fifth, the judge will have to decide whether the prejudicial effect "substantially outweighs" the probative value. This is an inexact science. Different judges may rate the probative value of tangential evidence as anywhere from 1 to 5 and may think its prejudicial effect is anywhere from 4 to 10. Some judges may exclude evidence where the probative value is 2 and the prejudicial effect is 5 while others might let it in unless the prejudicial effect is a 7 or 8.
How would you rule if you were the judge? Which of these photos would you exclude?
When you have decided, click here .
