Rule 403 -- Balancing low probative value against prejudicial effect

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 might have 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 crimes, 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."

Illustration.  John Kincaid has been charged with rape based on the complaint of Susan Riggins, who alleges that she was sexually assaulted by John in a bedroom of an off-campus student house during a party. John claims the sex was consensual. Consider two items of evidence:

a) John was a political science major and member of the pre-law society, and
b) John was an IU football player and member of ATO fraternity.

The probative value is the same, but the prejudicial effect is different. In the minds of some jurors, the latter will link this case to cultural stereotypes about sexual assault. And, because the evidence has little probative value on the question of consent, the latter evidence could be excluded under Rule 403.

Let’s take a second example.  John wants to introduce a photo (click here) showing him with Susan at a party one year before the alleged rape. How do we think through whether it’s admissible?

1) First question: Is the photo relevant at all? Of course. The background and relationships among parties to a lawsuit are always relevant. Knowing their history will tell us something about whether John might have a motive to attack Susan, whether they had a prior consensual sexual relationship, or whether Susan might have a motive to bring a false accusation.

2) Second question: How relevant is it -- what is its probative value on a scale from 1 to 10? Two versions:

    A. Susan says she felt comfortable going to John’s room because they had met before, and then he attacked her. John says they had met and flirted before, and this time had consensual sex.
    B. Susan says she had never met John before and went to the room by mistake, looking for a bathroom. John says they had met before and flirted, and this time had consensual sex.

In version A, I give the photo a probative value of 1. It confirms they knew each other, but not how well or what kind of relationship they had, and it's a year old, so it doesn't tell us much about their relationship at the time Susan says she was attacked. In version B, I give it a 5. It undermines the credibility of the accuser, but not fatally because it does not prove she is lying -- people don’t necessarily remember everyone they meet at a party. It could have been a brief encounter.

3) 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, illegal immigrants, abortion or any other topic people get emotional about, argue about, or hear about at church, then it has SOME prejudicial effect. This photo shows John and Susan with what appear to be alcoholic beverages in their hands, so it has some prejudicial effect.

4) Fourth question: If there is prejudicial effect, how prejudicial is it on a scale of 1 to 10? I give it a 1. Looks pretty innocuous to me. Even if the trial were taking place in Utah with a bunch of non-drinking Mormons on the jury, the fact that the victim and accused drank a beer a year ago at a party is not really going to shock anyone. Maybe a 2.

If the score is 1 to 1 or even 2 to 1, the judge should admit the photo because its prejudicial effect does not substantially outweigh probative value.

Let's look at some other examples of a photograph showing John and Susan together. For each one, assign a prejudice level of 1-10.

a) Photo 2: John and Susan at a Little 500 party
b) Photo 3: John and Susan at a spring break party
c) Photo 4: John and Susan at a party in Susan’s apartment
d) Photo 5: John and Susan at a political party

5) 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 and prejudicial effect of evidence differently.

How would you rule if you were the judge? Which of these photos would you exclude in Version A, and which (if any) in Version B?
When you have decided, click here .