0502

Whatever you said, you are right. The trial judge has total discretion in making Rule 403 decisions. You can exclude all five photos, or you can let all five in, in either version A or version B.

If I were the judge, I would rate their prejudicial effect as:

Little 500 party -- 4
Spring break party -- 4
Coke party -- 9
Trump rally -- 7

But evidence is not to be excluded just because it's prejudicial and will distract the jury. Whether evidence is too prejudicial to be admitted is a relative concept, not an absolute one. Prejudicial evidence is excluded only if the probative value is small and remote, and the danger of prejudice large and immediate.

That means under Version A, where the only relevance is confirming the undisputed fact that they knew each other, I would exclude all of them.  Even 4 to 1 is a “substantial” difference.

Questions? E-mail tanford@indiana.edu and refer to 0502

But what result under version B? If the victim in her testimony claims she did not know and has never met John, the probative value of the photo goes up -- it contradicts her testimony and casts doubt on her credibility. She's either been caught in a lie or shown to have a faulty memory.

As judge, would you now admit any of the 4 photos you previously excluded?

When you have decided, click here .